How specific must a bequest be?

C

cjwils

New member
I have seen in some of the other threads in this forum that a bequest is one of the few ways that a gun can legally be transferred to another person across state lines without going through an FFL. But must a bequest specify the gun? Or could my will simply say "I leave all my guns to Joe." Then after I die could Joe, who lives in another state, come and get them and take them back to his state without going through an FFL?

What if I am even less specific? For example: "I leave all my personal property to Joe." And my personal property includes guns.
 
cjwils said:
What if I am even less specific? For example: "I leave all my personal property to Joe." And my personal property includes guns.
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Then that's a bequest. The will has named a recipient for "all [your] personal property."

Suppose, though, that you don't have a will. Then you would die "intestate," and distribution of your property would be in accordance with the laws of your state. I'm not sure (as I am not a lawyer), but I think even then the guns would be a "bequest" if transferred to the person or persons stipulated by state law.

In your example, you leave everything to Joe. Let's assume Joe is your best friend and hunting partner. Let's further assume that Joe knows your nephew from the other end of the country has always admired your .753 MegaBlaster SXP, so he (note: "he," not your will) decides that gun should go to nephew Johnny B. Good. Whoever the executor of the will is cannot just send the MegaBlaster to Johnny, because the MegaBlaster was not bequeathed to Johnny. It was bequeathed to Joe.

If you die intestate leaving a wife and kids, if your state's law says that everything goes to your wife, even if she doesn't like guns and your two sons do, the executor cannot just hand the guns to your sons because the legal heir to your estate (per your state's law) is your wife.



[Standing by for the legal eagles to correct me.]
 
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The language in § 922(a)(5)(A) is incredibly vague:

the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence
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Hopefully, someone versed in estate law can provide more guidance.
 
Tom Servo said:
Hopefully, someone versed in estate law can provide more guidance.
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Estate law certainly was never my specialty, but I can outline the basics. Receiving something by bequest, or by intestate succession, involves a formal legal process.

  1. When there's a written will, it normally must be submitted to probate in court.

    • The will ordinarily designates an executor (i. e., the personal representative of the decedent). That person is not the executor unless and until the will is admitted to probate in the proper court and the court issues Letters Testamentary recognizing that person as executor.

    • The executor once qualified then proceeds to identify and account for the assets of the estate. He may need to collect debts owed the decedent and manage property or other assets of the estate. He might also need to sell assets of the estate to raise funds to pay debts of the decedent and/or taxes. He or she then pays debts and taxes of the decedent under court supervision.

    • The executor then handles, again under court supervision, distribution of the assets of the estate in accordance with the terms of the written will.

    • If the formalities involved in the distribution of the decedent's property under a will haven't been followed, it's not clear that just being handed a gun included in the property identified in a will as going to you is acquiring a gun by bequest for the purposes of federal law (18 USC 922(a)(3) and 18 USC 922(a)(5)).

  2. Intestate succession is not some informal dividing up of the decedent's property amongst the relatives. It's a highly formalized procedure.

    • First, someone has to go to the proper court and apply to be named the administrator (i. e., the personal representative of the decedent to wind up the estate) of the decedent's estate.

    • Once the court has issued an order designating someone as the administrator, that person proceeds to identify and account for the assets of the estate. He or she then uses those assets to pay any remaining debts of the decedent and any taxes due. This is all done under the supervision of the court.

    • After the debts and taxes are paid, the administrator, under court supervision, will distribute any remaining assets to those relatives entitled under the applicable statutes to a share of the estate. Only those relatives specifically identified in the applicable statutes are entitled to a share of the decedent's property, and only in the proportion set out in the applicable statutes.

  3. It's true that often, if there's not a lot of property involved, the relatives don't bother with the formalities and just divide everything up. That usually works out as long as no one complains. But it might not satisfy federal law if a gun is involved.
 
I think I might be more confused than before I read this.

Say I go to visit my dad in another state and he gives me a gun. It is a gift and I can take it back to the state I live in. Yes or no?

Say dad dies without a will so everything goes to mom. Mom says I do not want his guns divide them up how you want. I then can take them home with me. Yes or no?

Or dad left a note telling mom what guns he wanted me to have. I can then take them home to another state. Yes or no?

I would imagine those things happen a lot with complete ignorance of and not a thought given to the law.
 
1) Say I go to visit my dad in another state and he gives me a gun. It is a gift and I can take it back to the state I live in. Yes or no?

2) Say dad dies without a will so everything goes to mom. Mom says I do not want his guns divide them up how you want. I then can take them home with me. Yes or no?

3) Or dad left a note telling mom what guns he wanted me to have. I can then take them home to another state. Yes or no?
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No, no, and probably/maybe no.

(1) is an illegal interstate transfer - needs to go through an FFL in your home state. [[ Strictly speaking, a long gun could go through an FFL in any state, but handguns require the state of residence of the receiver. ]]

(2) is also an illegal interstate transfer, because the guns belong to Mom - resolves to the same thing as (1).

(3) is trickier - is that note a 'will' that legally governs the distribution of his property? I don't know; might depend on state law.
 
If any of those situations ever come up at least I will be more educated about them now.

Not too many years ago I would never have given it much thought.

A long time ago I stored all my guns at my dad's house when I was stationed in a place I could not take them. I was a resident of another state. When I got back I picked them up and moved to my new station. Did I break the law?

I am retired now so I do not see that happening again. But I have thought about working overseas again after my youngest is out of school and just assumed I would do the same thing again.

Is it even possible anymore to do what seams like common sense, when it comes to guns, and not break some law?
 
Chaz88 said:
I think I might be more confused than before I read this.

Say I go to visit my dad in another state and he gives me a gun. It is a gift and I can take it back to the state I live in. Yes or no?
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A gift is a transfer, not a bequest. If it's a rifle and if the transfer is legal according to the laws of your father's state of residence AND your state of residence, okay. May need an FFL in your father's state, if not yours.

If it's a handgun -- felony for both you and Dad.

Say dad dies without a will so everything goes to mom. Mom says I do not want his guns divide them up how you want. I then can take them home with me. Yes or no?
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Rifles -- see above.

Handguns -- felony for both you and Mom. Once everything goes to Mom ... she's alive. If/when she subsequently transfers the guns to you, there is no bequest. It's a gift, from one living person to another living person. See your question above, and substitute "Mom" for "Dad."

Or dad left a note telling mom what guns he wanted me to have. I can then take them home to another state. Yes or no?
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See Frank Ettin's post. IF the "note" is accepted by the probate court having jurisdiction as being a valid will, then the executor of the estate can (when the probate court approves it) transfer the guns to you without going through an FFL. If the probate judge doesn't accept the note as a valid will, then (unless there is another will that IS deemed to be valid) your father would be considered to have died intestate, and the distribution of his estate will be as dictated by the laws of his state of residence.

A long time ago I stored all my guns at my dad's house when I was stationed in a place I could not take them. I was a resident of another state. When I got back I picked them up and moved to my new station. Did I break the law?
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If the guns were in a locked safe or similar container and your father didn't have the key or combination, no problem. If the guns weren't locked up, or if your father had access to them, then, yes ... you broke the law.
 
To echo Librarian:

Chaz88 said:
...Say I go to visit my dad in another state and he gives me a gun. It is a gift and I can take it back to the state I live in. Yes or no?...
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No.

Chaz88 said:
...Say dad dies without a will so everything goes to mom. Mom says I do not want his guns divide them up how you want. I then can take them home with me. Yes or no?...
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No. The guns did not come to by by either bequest or intestate succession.

Chaz88 said:
...Or dad left a note telling mom what guns he wanted me to have. I can then take them home to another state. Yes or no?...
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Most likely no. There are some particular legal requirements for a document to be recognized as a will.

We always seem to get beyond the simple question asked by the OP, so here, as baseline, is the whole federal law story on interstate transfers of firearms (not including the rules for those with Curio and Relic licenses and the subject of dual residency):

  • Under federal law, any transfer (with a few, narrow exceptions, e. g., by bequest under a will) from a resident of one State to a resident of another must be through an FFL. The transfer must comply with all the requirements of the State in which the transfer is being done as well as all federal formalities (e. g., completion of a 4473, etc.).

  • In the case of handguns, it must be an FFL in the transferee's State of residence. You may obtain a handgun in a State other than your State of residence, BUT it must be shipped by the transferor to an FFL in your State of residence to transfer the handgun to you.

  • In the case of long guns, it may be any FFL as long as (1) the long gun is legal in the transferee's State of residence; and (2) the transfer complies with the laws of the State in which it takes place; and (3) the transfer complies with the law of the transferee's State of residence. In connection with the transfer of a long gun, some FFLs will not want to handle the transfer to a resident of another State, because they may be uncertain about the laws of that State. And if the transferee resides in some States (e. g., California), the laws of the State may be such that an out-of-state FFL will not be able to conduct a transfer that complies.

  • There are no exceptions under the applicable federal laws for gifts, whether between relatives or otherwise, nor is there any exception for transactions between relatives.

  • The relevant federal laws may be found at: 18 USC 922(a)(3); 18 USC 922(a)(5); and 18 USC 922(b)(3).

  • Here's what the statutes say:
    18 U.S.C. 922. Unlawful acts

    (a) It shall be unlawful—
    ...

    (3) for any person, other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector to transport into or receive in the State where he resides (or if the person is a corporation or other business entity, the State where it maintains a place of business) any firearm purchased or otherwise obtained by such person outside that State, except that this paragraph

    (A) shall not preclude any person who lawfully acquires a firearm by bequest or intestate succession in a State other than his State of residence from transporting the firearm into or receiving it in that State, if it is lawful for such person to purchase or possess such firearm in that State,

    (B) shall not apply to the transportation or receipt of a firearm obtained in conformity with subsection (b)(3) of this section, and (C) shall not apply to the transportation of any firearm acquired in any State prior to the effective date of this chapter;​

    ...

    (5) for any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) to transfer, sell, trade, give, transport, or deliver any firearm to any person (other than a licensed importer, licensed manufacturer, licensed dealer, or licensed collector) who the transferor knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the transferor resides; except that this paragraph shall not apply to

    (A) the transfer, transportation, or delivery of a firearm made to carry out a bequest of a firearm to, or an acquisition by intestate succession of a firearm by, a person who is permitted to acquire or possess a firearm under the laws of the State of his residence, and

    (B) the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;​

    ....

    (b) It shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver --
    ...

    (3) any firearm to any person who the licensee knows or has reasonable cause to believe does not reside in (or if the person is a corporation or other business entity, does not maintain a place of business in) the State in which the licensee's place of business is located, except that this paragraph

    (A) shall not apply to the sale or delivery of any rifle or shotgun to a resident of a State other than a State in which the licensee's place of business is located if the transferee meets in person with the transferor to accomplish the transfer, and the sale, delivery, and receipt fully comply with the legal conditions of sale in both such States (and any licensed manufacturer, importer or dealer shall be presumed, for purposes of this subparagraph, in the absence of evidence to the contrary, to have had actual knowledge of the State laws and published ordinances of both States), and

    (B) shall not apply to the loan or rental of a firearm to any person for temporary use for lawful sporting purposes;​

    ...
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We always seem to get beyond the simple question asked by the OP
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Sorry. I often read a question that starts me thinking about a bunch more.

Thanks for the education. I think?

NOTE: I left them locked in my gun cabinet. Not to keep my dad from using them but my brother. Guess I can do that again if needed.
 
Let me further muddy the waters. If Dad dies, and mom lives, mom inherits. However, can't mom refuse the bequeath? I would assume that bequeath may well come with a tax duty, and I'm assuming one could refuse the property as the tax involved may hurt more than the benefit.

So if Dad dies intestate, and mom inherits, but mom knows shooting was a father-son thing, couldn't mom intentionally refuse that property which could/would then devolve to next next-of-kin i.e. his children?
 
Let me further muddy the waters. If Dad dies, and mom lives, mom inherits. However, can't mom refuse the bequeath? I would assume that bequeath may well come with a tax duty, and I'm assuming one could refuse the property as the tax involved may hurt more than the benefit.

So if Dad dies intestate, and mom inherits, but mom knows shooting was a father-son thing, couldn't mom intentionally refuse that property which could/would then devolve to next next-of-kin i.e. his children?
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I think you would want a lawyer involved in that sort of scheme, and it would cost more than just buying new guns. Live in the same state as mom and in most states this is not an issue. Or invite mom to move in for a while, once she is a resident she can just give you the guns, in most states. Or get Dad to write a proper will, with the guns addressed.
 
JimDandy said:
Let me further muddy the waters....
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To the point that there is no answer.

  1. Declining a bequest or property devolving by intestate succession will be matters decided, in general, under state law (except questions of federal estate tax).

  2. If a gun is part of the property, the consequences to the person then finally getting the gun for the purposes of 18 USC 922(a)(3) and 922(a)(5) is not clear from the statutes. One would need to look to the federal courts for guidance.

  3. I'm not going to do the research, so unless you know what the federal courts have said on the question, in situation involving a transfer of a gun across state lines one in such a situation would be well advised to use an FFL.
 
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