Estate Planning of Special Concern to Gunowners By Karen MacNutt
Writing for a magazine gives you a sense of immortality. Those of you who faithfully read my column will note that, according to my official photograph, I have not aged a bit since I wrote my first article over ten years ago. Much to my dismay, my mirror is a more accurate source of information than my official photograph.
Like most of you, I am good at ignoring things that are unpleasant. No one likes to think about getting older. One day I looked at a photo of Dwight Eisenhower and thought, "Why, he was only a young man." I realized that most of the people around me were not alive when Kennedy was assassinated, or when Americans landed on the moon, or when Elvis was king or when the Beatles arrived. A growing number of people cannot imagine a world without video games and computers. The other day 1 told a new secretary to use the typewriter to fill in a form. There was an awkward moment. Then she asked, "What is a typewriter?"
It is a fact of life that we get old and eventually we die. It is not a pleasant thought, but it is a reality, which we must all plan for.
Your "estate" is made up of anything of value that you own. Most of us would like to see our family or friends get our "things" (our "estate"), when we die. Lawyers use trusts, wills at beneficiary accounts to help people to do that. Lawyers call such plans "estate plans".
A trust is an arrangement by which property is placed in the control of one person (the trustee) to be managed for the benefit of other people (the beneficiaries). The government treats the trust as if it were a person, much like it treats a corporation. Trusts have to file their own income taxes and can be costly to administer. For that reason I do not like using trusts un less there are special problems such as the need to take care of a minor child; the need to do tax planning; or some other special need to manage property.
The main tool used by lawyers for estate planning is a will. A will allows you to name the person who will manage your affairs after you have died (called an executor or personal representative). It also allows you to say what will happen to any property standing in your name when you die. If you have a will, it has to be filed with a court after your death. This is called probating the will. It is a fairly straightforward legal proceeding. The court insures that all your bills are paid from your money and the balance of your property goes to the people You'll have named. With a will, you can name an executor, the person who will take care of your affairs when you die. This is important. If you die owning property and you do not have a will, the court will appoint an administrator to manage your property. This person may or may not be someone you want to do the job.
Many articles have been written on how to avoid probate-that is how to avoid having the court supervise the distribution of your property after death. Having court supervision is not always a bad thing. Avoiding probate court does not mean your estate will avoid paying death taxes. The government will tax any property you had an interest in when you died even if the property goes directly to a named beneficiary and is not passing through probate court.
One way of avoiding probate is to have all your property in beneficiary accounts. In a beneficiary account, the property goes directly to the person you designated as beneficiary on the account when you die. It does not go into your probate estate. Such property is not subject to the provisions of your will. It is subject to estate or death taxes.
There are a number of different types of beneficiary property. The most common beneficiary property is a life insurance policy. Credit union accounts and pension vehicles such as 401(K) and IRA accounts generally have named beneficiaries. If you have such property, you should periodically review the policy or ownership papers to make sure the person you named as beneficiary has not died before you or fallen into your disfavor. Jointly owned property also goes directly to the surviving owner. None of this property is subject to your will nor is it in your probate estate. It is part of your taxable estate. There are problems with having all your assets in beneficiary accounts or in forms of ownership that pass outside your estate. Because these assets do not go into your estate, such forms of ownership may result in an uneven distribution of your assets. In some cases they may result in unnecessary taxation or may cause problems with the bills family members must pay from your estate. For small estates, beneficiary accounts can be a good way of passing property after your death.
Your taxable estate includes any property in which you had an interest at the time of your death. This includes life insurance, joint accounts, and property with named beneficiaries. Under some circumstances, it may include property you gave away years before you died.
Many lawyers have clients fill out an estate-planning memorandum. This document lists such things as the names of your parents, your social security number and other identifying information. It also lists your property, your funeral arrangements, your insurance policies, and other information that will be helpful in probating your estate. Making such lists is a good idea. They are a tremendous help to your family if you die suddenly. Such lists allow you to advise your family on where your assets are located and how they should be handled.
Gun owners need to give special consideration to their firearms when they plan their estates. Those special considerations should be set out in the estate-planning memorandum along with the location of the guns. This is particularly important for those of you who "hide"" guns at home. I remember my neighbor saying that I should not worry about his kids getting hold of the Luger he brought home from World War II. He said he had hidden it where they would never find it. He was right. After he died, they tore the house apart but could not find the gun. Some day the new owner of the house will be doing renovations and will find it between the walls.
You should educate your executor and leave instructions in your estate memorandum as to a number of things. Your family should be educated about your guns. This is important for two reasons. First, you do not want them to destroy the value of your collection. Second, you do not want them to violate the law. Guns can be quite valuable. If your family and executor are nor properly educated they can be defrauded out of a valuable asset by being panicked into giving up your guns.
It is important that the executor knows that there will be guns in the estate. He or she will need to immediately secure the guns if something happens to you. You should show your executor, while you are alive, where your guns are stored and where the keys to the storage areas or gun locks are. If you live alone, the executor should remove the guns from your home on your death. Leaving them in an unoccupied home is not a good idea. Thieves read the obituary column.
The executor and your family should know the firearms laws in your state. They should know how your guns are stored. In some states, failure to store guns properly is a serious crime. They need to know what licenses, if any, they will need to take possession of the guns. This is particularly so if the collection contains machine guns (even those deactivated) or other guns governed by the National Firearms Act. There is a general belief that a gun which is not capable of functioning is not covered by gun laws. This is not always the case.
Machineguns, under federal law, continue to be regulated even if they have been welded closed. Although many states have provisions for executors to be able to temporarily possess guns in an estate, those provisions do not necessarily allow the executor to transport the guns. Also, the exemptions are frequently not long enough to allow for an estate to be settled. The exemption is more directed at giving the executor enough time to obtain the proper firearms licenses.
If there will be guns in your estate, your executor should not be someone who is prohibited by law from possessing guns. People who are not citizens, have felony convictions, misdemeanor domestic violence convictions, histories of drug or alcohol abuse or mental illness may be disqualified from possessing guns. You and your executor should be familiar with gun laws that would impact on your executor's being in possession of your guns. If your executor is not properly licensed to possess guns but is otherwise a good person to manage your estate, you should give the executor instructions as to how he or she should store your guns until the estate is settled. Your executor may be able to store the guns with a friend or relative who is licensed or who is otherwise able to possess the guns lawfully. This friend should be willing to store the guns until the estate is settled. The alternative would be to find a gun dealer or gunsmith who would store the guns for your executor. If the guns are going to be auctioned or given to a museum, the gun may go directly to the museum or the auctioneer.
You do not want to leave the guns with the local police, as they have no financial responsibility for loss or damage to the guns left with them. You and your executor should discuss how the guns wil1 be stored and/ or disposed of. You should leave him or her instructions in your estate planning memorandum. You should be clear as to what you want done with your guns when you are gone.
Many lawyers will include a provision in your will giving your executor broad power to dispose of your tangible personal property. If this is the case, you should leave a letter with specific instructions as to how the guns are to be treated. The length and detail of the letter will vary depending upon how many guns you have and what you want done with them. Some people want their guns to go to specific family members. This is fine so long as the family member is not disqualified.
If the person who will inherit the guns is a minor, then you want to leave the guns in trust with an adult. Generally speaking, people do not leave assets of any kind to a minor child. The practice is to leave all such property in trust for the child until the child reaches some designated age. You can specify the age at which the trustee is instructed to give an adult child the guns or other property. The trustee should be legally qualified to hold the guns.
Your family and the executor should be made aware of the need to maintain certain other things with your guns. Original boxes often contribute greatly to the value of guns as do the original cleaning tools that came from the factory. All paper work surrounding the history of the gun should be kept. Bills of sale, other documents, a military authorization for a war trophy, and registration documents can be important to prove the legality of the gun as well as provide provenance for collectors. In some states, certain guns are illegal unless they were owned before a certain date. Having the original purchase document may make the difference between a gun being lawfully owned and one that is subject to confiscation. You should make sure people know enough to save these items and not to throw them out.
Some people have extensive and valuable collections of guns or other items. It is important that valuable items in your collection are properly identified. You can not assume your family or executor will know the difference between an item that is junk and one that is very valuable. Indeed, if you have had an item for a long while, you may have obtained it at a time when it was considered junk and kept it long enough for it to have become collectable. You must impress upon both your family and your executor that these items are valuable.
If possible, you should have a Iist of the items. Try to have them numbered, tagged, or photographed, that someone who is not an expert can identify which is which. Try to give some indication of value. Some dealers are not very honest. They will offer a small amount of money for the best items in a collection an leave the rest.
The family might think they have done well to sell one gun for $50 not realizing that the gun was worth $50,000. You may know the intricacies of your collectibles. You may know which items are rare and which are common. Chances are your family has little or no knowledge of the value of your collection. What is to you rare Civil War holster is to them al old, useless piece of dried up lea the to be tossed out.
As a collector you probably have learned over the years which dealers are fair and which ones are not. You probably have friends who are knowledgeable about guns. List these people in your estate memorandum. Tell your executor which gun dealers or auctioneers you think will treat your estate fairly. If your family is not interested in your guns, the best way to dispose of your collection is by auction. Selling the collection piecemeal will result in the sale of the best pieces and leave the family with the problem of disposing of marginal pieces that may be difficult to get rid of.
Look at your will as an opportunity to benefit people. Unless you have a young family that needs every penny of your support, give strong consideration to leaving something to charity or nonprofit groups you support. Gifts to the Second Amendment Foundation, the National Rifle Association, or your state association will help to preserve the hobby you have enjoyed.
This article was reprinted from Women&Guns May-Jun 2003, Copyright © 2003, Karen MacNutt