California conundrum

[won-a-glock]

A friend's elderly southern California relative passed away recently. Among other things, he was apparently a prolific weapons collector for decades, with several hundred handguns and rifles, a couple dozen mostly high end shotguns, and many knives. Some of the guns are believed to be full-auto, some may be banned in California but the family members that looked over the entire home were not gun savvy . The family just met at his house this past week and took inventory. The question is, what is the best way to disposition these weapons and pass them on to friends and family members.

 

[zippy13]

It's my understanding that in Calif. all legal gun transfers must go through a licensed dealer and are subject to the Calif. waiting period. But, some guns can not be transferred, like the Calif. registered assault weapons. Any full-auto guns are not legal in Calif. and their distribution may result in a trip to the gray-bar motel.

Do you friend a favor, if the collection is as large and "diverse" as you indicate, suggest the family contact an attorney who specializes in Calif. gun laws. It would be a shame if the family committed a legal faux pas that resulted in the entire collection being seized.

 

[Aguila Blanca]

There are two possible scenarios:

(1) If the deceased left a will, what happens to the guns will be determined by the terms of the will. Unless California law differs from Federal law, inherited firearms are not required to be transferred through an FFL. However, whoever will receive any full-auto firearms will have to obtain the required tax stamps. Any firearms that are not legal to possess in California should be removed from California.

(2) If there was no will, the firearms are part of an "intestate" estate and what happens to them (and everything) is handled as California law provides for intestate succession. Federal law provides that firearms inherited through intestate succession do not have to be transferred through an FFL. If the inheritor(s) is/are from another state, then California law cannot override this.

First step is to be clear whether or not there is a will and, if there is a will, if the firearms are specifically mentioned, or just lumped together with "all my other stuff goes to ..."

The question is, what is the best way to disposition these weapons and pass them on to friends and family members.

You have to be VERY careful here. Whether there is a will or the person died intestate, one way or another someone (maybe more than one) is the legal heir to each and every one of those firearms. THAT person or persons will be obtaining the firearms through inheritance. If he/she/they is/are from another state, only Federal law applies and there is no need for an FFL to make any transfers. Once a probate judge certifies the will (or the terms of intestate inheritance), the heir(s) can just pack up the guns and drive away.

However -- if the family decides to distribute the guns to members of the family who are NOT heirs, either because of terms in the will or because of the legal pecking order established by intestate succession, then those people will NOT be "inheriting" firearms (no matter how much it may feel like they are to them) ... they will be receiving firearms as transfers from living owners (the heirs who DID inherit the guns). THOSE transfers will require the intervention of an FFL.

The advice to consult an attorney is well-taken. This is not a question that can be answered with any authority by a bunch of people on an Internet forum who do not have complete access to ALL pertinent information.

 

[Frank Ettin]

Aguila Blanca, I think things are more complicated.

Remember that the federal law you're referring to concerns interstate transfers. What federal law provides is that in the case of receipt of a gun by will or intestate succession, is an exception to the general rule that an interstate transfer must go through an FFL. I gather that in this case, all involved may be California residents.

Another wrinkle is that distribution of the property of a decedent, by will or by intestate succession is a formal process that takes place under the supervision of a court. If there's a will, it must be filed with the appropriate court for probate, an executor designated by court order, and the estate managed and finally distributed under court supervision. If the decedent is intestate, a family member or friend must apply to the appropriate court to be designated the administrator of the estate, and he will then manage and distribute the estate under court supervision.

So it's not just a matter of the family getting together and parceling out the decedent's possessions. A formal, legal process is contemplated; and that's why the federal law provides an exception to the FFL rule for interstate transfers. If everything is being managed under court supervision, there would be no need for an FFL. I would for example expect a probate judge to assure that a gun was not distributed to a person prohibited under federal law.

In any event, it's difficult to imagine that a judge overseeing the probate of administration of the estate could allow a gun which may not be legally owned under California law by a California resident, or legally transferred to a California resident, pass by decent to a California resident.

The is not a situation that can be dealt with over the Internet. The family here needs the services of qualified legal counsel.

 

[Aguila Blanca]

Fiddletown -

I agree completely, and I thought I had made those same points. The only discrepancy is that I did not have the impression that all or most of the family members are California residents. The OP's location ("desert southwest") suggested to me that he may be in Arizona, Nevada, New Mexico or Texas. Obviously, we have no idea where the other relatives live. Most assuredly, transfers within California are subject to California law.

 

[Mr Lucky]

Some of the guns are believed to be full-auto, some may be banned in California but the family members that looked over the entire home were not gun savvy

Any full-auto or select auto firearm falls under The National Firearms Act (NFA).

Unfortunately, all NFA firearms must be registered. If the estate contains NFA firearms that were not registered by the deceased before 1986, they can not be registered by a private citizen and cannot be transfered in any state.

The possession of any non registered NFA classified firearm is contraband. Violation of the Federal law can be very stiff.

It would benefit the estate if any registration records can be obtained.

Do not attempt to transport any NFA classified firearms without registration. Property forfeiture, fines of up to $250,000, 10 years in jail or both not including forfeiture of firearms is possible.

Advise you contact a lawyer before contacting BATFE.

 

[won-a-glock]

I (won-a-glock) am a friend of the decedents’ son and agreed to solicit advice, but I have no interest in the fray, and haven’t visited the family / cache in California. To the questions posed: The heirs live in several states I know of, including California, Texas, Mississippi and Illinois, NY, maybe others. There are 5 kids and a bunch of grandkids / nieces / nephews. The son that wants most of the guns lives in Texas, there is varying / much less interest from the others. All the weapons are believe to have been acquired legally, as a box with ‘a bizillion receipts’ and class 3 paperwork was found.

The weapons include half a dozen class 3’s including a MP5, AK47 and a Browning M2. He also had a MacMillian .50 BMG and a Barrett M82A1 and some semi-AK's, and possibly some other weapons that may not be popular in California. Several Weatherby rifles from 7mm to .460, and quite a few .308 / 30.06 / 30-30’s. There is a grenade launcher (I think he said M203) from the 70’s and a Surbru sawed off shotgun. There are several Benelli and other high end shotguns. He purchased what seemed like most of the S&W pistols made from the 70’s through 90’s. One irony is there was very little ammunition in the collection.

My understanding is that the .50’s, semi-auto AK’s and many of the other long guns and some of the pistols are being picked up by an out of state son very soon, and that the federally regulated weapons will go through whatever processing is required. I may have some of the specifics wrong but believe that's pretty close.

If he had only invested in Xerox an Microsoft instead.....this might be much easier, but he probably wouldn't have had as much fun.

 

[Frank Ettin]

Bottom line is that if your friends want to do this all strictly legally, they will need the services of a fully qualified lawyer.

For example --

...My understanding is that the .50’s, semi-auto AK’s and many of the other long guns and some of the pistols are being picked up by an out of state son very soon,...

Unless the son has inherited those guns as the named beneficiary of them under a will (if there was a will) or is the proper recipient under the applicable intestate succession laws (if there was no will) and they were properly distributed to him through the court supervised probate or administration of the estate, he will be violating federal law if he just picks them up and takes them out of California.

 

[Aguila Blanca]

My understanding is that the .50’s, semi-auto AK’s and many of the other long guns and some of the pistols are being picked up by an out of state son very soon, and that the federally regulated weapons will go through whatever processing is required. I may have some of the specifics wrong but believe that's pretty close.

Just as fiddletown wrote. There has been no mention so far of a will. Whether or not there is a will, there are legal aspects that determine who inherits the firearms. If there is a will, the firearms belong to whoever is named in the will as heirs. The firearms may be listed specifically, or may be lumped into the "residuary estate," but someone inherits the guns. That person or persons gets the guns by inheritance, which does not require transfers through an FFL.

If there is no will, the law stipulates how the estate will be distributed. The guns are part of the estate, so in the absence of a will the law decides to whom the guns belong without going through an FFL.

Any other distribution of the firearms is a transfer after the death of the original owner from one or more heirs to ... some other people. Those transfers ARE subject to the same laws as just buying a gun from an Internet auction -- transfer through an FFL is required if they go to another state, and I gather transfer through an FFL is required even within California.

Please tell your friends that they can NOT just drive up and start handing out guns to whoever says they'd like this one or that one. They NEED legal advice, and they NEED to determine who actually inherited the guns before they start deciding where the guns will go next.

 

[won-a-glock]

Aguila Blanca and Fiddletown,
I understand there is a will, and one of the sons and a couple of grandsons were named collectively as receiptients of the guns.

 

[Frank Ettin]

...I understand there is a will, and one of the sons and a couple of grandsons were named collectively as receiptients of the guns.

Has the will been filed with the appropriate court for probate, an executor qualified, and letters testamentary (a court order recognizing the executor's authority to act as the personal representative of the decedent) issued?

 

[big_bad_kitty]

If you need a referral to a great CA attorney for a gun/probate matter, I will be glad to give you the info if you will pm me. He has handled a couple of things for a client of mine in CA hooked up with the feds and a probate matter involved also. Hood luck.

 

[Sefner]

I am cringing at the possibility that some of these firearms may be destroyed by the government. Just like when you see a rusted out old Thompson or Enfield.

OP needs to get a lawyer, and quick.

 

[Aguila Blanca]

Aguila Blanca and Fiddletown,
I understand there is a will, and one of the sons and a couple of grandsons were named collectively as receiptients of the guns.

Okay.

First step will be to do as fiddletown mentioned -- get the will approved by the probate court, the executor duly authorized, and the will accepted as valid.

Then ... assuming those steps have been followed, the entire fan-damily MUST recognize that the guns were bequeathed to one son and a couple of grandsons. Those three individuals, then, are the ONLY three who can receive any of these firearms as inheritance, directly from the estate without going through the FFL transfer routine.

If the family internally wishes to further divide/distribute some or all of the firearms to and among other members of the family, they are going to have to face the fact that these other members of the family are NOT "inheriting" the guns (no matter how much it feels to them like they are inheriting). The guns are being inherited by the three individuals named in the will. Subsequent distribution is simply transfers between/among living persons and are subject to ALL the usual rules. Being California, I assume there are no paperless face-to-face transfers, so each and every transfer to anyone not named in the will must go through an FFL.

 

[therealdeal]

LOTS of good info! wonaglock plse keep us posted. thats pretty cool that a zerox copy of the will is all one of those grandkids will need along with the guns in his gunsafe(and the transport out of CA). I would hate to see some of those weapons destroyed too. I wonder if some of them are just total no-go's? they would be grandfathered right?

 

[Frank Ettin]

...Those three individuals, then, are the ONLY three who can receive any of these firearms as inheritance, directly from the estate without going through the FFL transfer routine....

I have no idea if it would really be even that easy.

[1] First, the distribution must be through the probate proceeding in court, and I have no idea what the judge will require to approve the designated beneficiaries actually taking physical possession of the firearms.

[2] Since the federal law only relates to the transfer of a gun across state lines, if a designated beneficiary is a California resident, California law will apply to the transfer. There are some special rules for transfer from a parent to child or for a grandparent to grandchild. And if one of the designated beneficiaries is other than a child or grandchild, and a California resident, there's not reason to conclude that an FFL won't be required.

Bottom line is that they need a good lawyer.

...thats pretty cool that a zerox copy of the will is all one of those grandkids will need along with the guns in his gunsafe(and the transport out of CA)....

But I doubt that's all that's needed. What's really needed is for the OP's friends to get a good lawyer.

....they would be grandfathered right?

What? Unregistered fully automatic weapons? No, they would not be grandfathered. So called assault rifles that weren't registered as required under California law? They wouldn't be grandfathered either.

 

[therealdeal]

fiddletown,

is there a scenario where CA or the fed govt can take the weapon because it was legal then but its not now?? It was bought legally at the time so grandfathered as example but mainly many states donot require registration of firearms. I know here in VA its not required but I know nothing about fully automatic laws

 

[Frank Ettin]

...is there a scenario where CA or the fed govt can take the weapon because it was legal then but its not now??...

Sure. Some years ago, what are sometimes referred to a assault rifles were perfectly legal to buy in California, just like any other rifle. Then California enacted a law essentially banning such rifles, but California residents had a period of time in which to register such rifles then in their possession. If they did register them, they could keep them. Some residents chose not to register their assault rifles, and the time period for registration has long passed.

So now, any rifle meeting the definition in the law of an assault rifle, if present in California and not registered, either because it was legally purchased in California before the ban and not registered or because it was legally purchased elsewhere and brought in to California, e. g., by someone who moved here from another State, is contraband.

 

[TXAZ]

Yikes!!!!!!!!!!!!!!!!!!!!!

Yikes! I hope my parents (or anyone else crazy enough to include me in a will) never die, as this probate, will and decedent stuff is way to complicated for me, let alone getting arrested for doing something one would believe is OK.
What ever happened to laws that make sense?

I think I'll just stick to something simpler like designing undetectable global communications systems.

Of course, then again, this was in California.

 

[Frank Ettin]

...as this probate, will and decedent stuff is way to complicated for me, let alone getting arrested for doing something one would believe is OK.
What ever happened to laws that make sense?...

Actually, the laws of decent, wills, probate, intestate succession, etc., go back several hundred years. It was complicated then, and it's still complicated -- but really a little less so.