Florida Estate Planning Lawyer Blog
41F was published today in the Federal Register. Here is a link to 41F as filed which is similar to the draft that has been circulating.
41F will be effective 180 days from today or on Wed July 13, 2016. Applications filed prior to July 13, 2016 will be handled under the current rules. Applications filed with the ATF after July 13 will have require a CLEO notification, fingerprints and photographs for each responsible person.
The biggest change for Gun Trusts and other legal entities between 41P and 41F is the change from the CLEO certification to a CLEO Notification for each responsible person. In addition ATF significantly limited the definition of a “responsible person” as compared to what was originally presented in 41P. The CLEO notification in 41F appears to be limited to trustees and co-trustees in most trusts, but can be expanded because of the terms of the trust to also include beneficiaries and others with the ability to manage and possess the NFA firearms. These changes happened after more than 9500 comments were received in response to 41P. – For links to the major comments see our 41P page.
The final rule attempts to clarify the definition of a “responsible person” for trusts and legal entities, but leaves much ambiguity because of the way it that it was written. While it is clear that a trustee or co-trustee is a responsible person, many other trusts will create responsible parties by giving individuals the power to receive, possess, ship, transport, deliver, transfer, or otherwise dispose of a firearms for, or on behalf of the trust.
The important part here, is that if your trust gives the power to receive, or possess (hold or use) a NFA firearm, they will be a responsible person and be subject to CLEO notification and the other requirements imposed under 41F as published.
Normally in most trusts a beneficiary or successor trustee would not be considered a Responsible person, but in some gun trusts I have reviewed, the trust permits beneficiaries or others named in a trust or will or separate document to have possession and use the firearms. These people, in my opinion, would be responsible persons under the the Definition found in 27 CFR 479.11
The ATF has indicated that if a trust references another document, schedule or exhibit it will need to be submitted along with the trust when the application to make or transfer a NFA firearm is being submitted.
Some lower priced Gun Trusts seem to refer to beneficiaries named in your will or some other document outside of the trust. This would mean that you would have to submit your will or the other documents along with your trust for approval. If you do not have a will, your trust may not be valid or your application may not be approved. If your Gun Trust names another document for your beneficiaries, you may want to amend your trust to list your beneficiaries.
As additional form are released, we will continue to update our example pages for how to fill out these new forms. Links to the current forms for a Form 1, 3, 5, 20 and other useful information on additional configurations and engraving can be found on https://www.guntrustlawyer.com/signing
This rule adds a new section to 27 CFR – part 479 to address the possession and transfer of NFA items registered to a decedent but this does little other than to codify how the ATF previously dealt with estates.