estate planning and estate administration issues posed by firearms

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  • Estate Planning and Estate Administration Issues Posed by


    Presented to the Estate Planning Council of Middle Tennessee on

    September 12, 2016

    By Robin L. Miskell, Esq. Dickinson Wright PLLC

  • Why do you need to know something about firearms?

    The number of households that have firearms range from 38% to 45% depending on the source.

    The number of households that have Title II firearms is much smaller, but the consequences of violating federal laws are severe, including up to a $250,000 fine and 10 years in prison, and the right to possess such firearms in the future.

    To provide a valuable service to clients that own firearms.


  • The Basic Right of the Second Amendment of the United States Constitution

    A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

    One interpretation is an individual right theory and to prohibit legislative bodies from restricting right (right of the people)

    The other interpretation is a collective rights theory providing that the framers intended only to restrict Congress from legislating away a state's right to self-defense (well regulated militia)

    There is a series of Supreme Court cases that resulted in the strengthening of the interpretation of the Second Amendment as an individual right


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  • Agenda

    Definition of firearms under federal and state law (with pictures)

    Applicable federal and state laws for firearms

    Estate planning with firearms

    Issues and concerns in estate and trust administration posed by firearms


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  • What is the definition of a firearm under the Gun Control Act?

    The Gun Control Act (GCA) provides that a firearm includes the following weapons:

    Pistols, revolvers

    Rifles, shotguns

    Frames or receivers



    Destructive devices

    All other weapons that expel a projectile by the action of an explosive.


  • What is the definition of a firearm under the NFA?

    The National Firearms Act provides that a firearm means:



    Short-barreled shotguns

    Short-barreled rifles

    Destructive devices

    Any other weapons


  • What is a machinegun?

    Machine guns are any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger, including any combination of parts.

    Must be made before May 19, 1986.

    Some parts do not qualify as Title II parts slide fire and crank fire.


  • Thompson Submachine Gun


  • Machinegun Parts


  • Suppressors/silencers

    Suppressors/silencers any device for silencing, muffling, or diminishing the report of a portable firearm, including any combination of parts.

    These are becoming more common to reduce damage to eardrums.

    Commonly referred to as cans.


  • Suppressors/Silencers


  • Short Barreled Shotguns

    Short-barreled shotguns a shotgun with a barrel length of less than 18 inches or an overall length of less than 26 inches. (Example: sawed-off shotguns) Note: The ATF uses a specific method for measuring the

    barrel length of a gun by using a dowel rod to stick into the barrel to the closed bolt or breech face and marking the end of the barrel on the dowel rod to measure the length of the barrel.


  • Short Barreled Shotgun


  • Weapon Made from a Shotgun


  • Short Barreled Rifle

    Short barreled rifles a rifle intended to be shot from the shoulder with a barrel length of less than 16 inches or an overall length of less than 26 inches.


  • Short Barreled Rifle and Weapon Made From Rifle


  • Destructive Devices

    Destructive devices any explosive, incendiary or poison gas (i) bomb (ii) grenade (iii) rocket having a propellant charge of more than 4 ounces (iv) missile having an explosive or incendiary charge of more than 1/4 oz. (v) mine, or any type of weapon which will expel a projectile and which has any barrel with a bore greater than 1/2 in diameter or any combination of parts.


  • Destructive Devices U.S. Rocket Launcher (Bazooka)


  • Destructive Devices Street Sweeper


  • Destructive Devices Mortar


  • Any Other Weapons (AOWs)

    Any other weapon (AOW) any weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive; a pistol or revolver having a barrel with a smooth bore designed to fire a fixed shotgun shell; and weapons with a combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading.

    Example: Cane guns or pen guns.


  • Smooth Bore Shot Revolver

    Smooth Bore, Shot-Pistol

    Any Other Weapons (AOWs)


  • Any Other Weapons (AOWs)


    Tear Gas Pen Guns

  • Any Other Weapons (AOWs)

    Wallet Holster


  • Antiques

    An antique firearm is a firearm (other than a machinegun or destructive device): either manufactured in or before 1898, or

    replica of gun made in or before 1898 if not designed or redesigned for using rimfire or conventional centerfire fixed ammunition, or uses rimfire or conventional centerfire fixed ammunition which is no longer manufactured in the U.S. and is not readily available, or

    any muzzle loading rifle, muzzle loading shotgun or muzzle loading pistol designed to use black powder. 18 USC 921(a)(16).

    These weapons can be purchased without going through a Federal Firearms License (FFL) holder.


  • Curios and Relics

    Curios and relics are defined as:

    Manufactured 50 years prior to current date;

    Firearms which are of special interest to collectors by reason of some quality other than is associated with firearms intended for sporting use or as offensive or defensive weapon; or

    Certified by a museum.


  • Curios and Relics

    A person may obtain a license to collect curios and relics. 18 USC 923(d)(1)(B).

    In the case of a corporation, partnership or association, any individual possessing power to direct management and policies of the corporation, partnership or association may obtain a license

    a trust is not included in the definition of a person and

    may not obtain a license

    If a person has a curios and relics license, such weapons may be obtained without going through a FFL holder.


  • What is the definition of firearm under Tennessee law?

    Prohibited weapons include, unless the person is in compliance with the NFA:

    Explosive or explosive weapon (includes bombs, grenades, etc.);

    Device designed to shoot an explosive weapon;

    Machine gun (defined as any firearm that is capable of shooting more than two (2) shots automatically, without manual reloading, by a single function of the trigger);


  • What is the definition of firearm under Tennessee law? (continued)

    Short barrel rifle or shotgun;

    Firearm silencer;

    In addition to NFA - Hoax device (means any device that reasonably appears to be or is purported to be an explosive or incendiary device and is intended to cause alarm or reaction of any type by an official of a public safety agency );


  • What is the definition of firearm under Tennessee law? (continued)

    In addition to NFA - Knuckles (means any instrument that consists of finger rings or guards made of a hard substance and that is designed, made or adapted for the purpose of inflicting serious bodily injury or death by striking a person with a fist enclosed in the knuckles);

    Other implement to cause serious injury that has no common or lawful purpose.


  • Agenda - How are firearms regulated?


    GCA, amended the NFA

    How to Make, Transfer, and Purchase Title II Firearms

    ATF Regulations - Final 41F regulations


    Executive Action

    Tennessee Law


  • How are firearms regulated? Federal law - NFA

    National Firearms Act (NFA) - The NFA was enacted in 1934 under the Sixteenth Amendment (Congress power of taxation) to curtail the gangland crimes.

    The $200 transfer tax was implemented in 1934 and remains in force today. The amount of the tax can be compared to $3,438 in 2013.

    The NFA is located in the Internal Revenue Code.


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  • How are firearms regulated? Federal law - NFA (continued)

    The NFA governs the purchase, sale, transfer, use and ownership of certain Title II firearms, including machineguns, suppressors/silencers, short barreled shotguns, short barreled rifles, destructive devices, and any other weapon.

    The penalty for unlawfully possessing a regulated firearm may be up to $250,000 fine and ten years in prison (26 USC 5871), along with forfeiture of the firearm as illegal contraband (26 USC 5872).


  • How are firearms regulated? Federal law - GCA (continued)

    Gun Control Act of 1968 (GCA) - Title I is the original Gu