New York laws governing the disposition of a firearm part of an estate or trust when a gun owner dies may be affected by the Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013. The legislation amending legislative regulation of gun ownership, includes rules and timeline for safeguarding firearms after the registered owner is deceased. In response to the Act, §2509 of the New York Surrogate’s Court Procedure Act (SCPA) was reformed with new estate settlement rules requiring fiduciaries to file an estate’s firearms inventory with the court. State law also require that firearms inventory of a decedent’s estate be filed with the division of criminal justice services. Heirs to an estate holding firearms assets should be aware that failure to file the required inventories is a violation of New York Penal Code.
Will transfer of firearms to beneficiaries.
A written last will and testament naming a specified beneficiary designates the person who will receive an asset after death. In the case of firearm assets, distribution cannot be performed by passing the gun directly without criminal liability. Prior to distribution, the Administrator or Executor of the estate must “(i) know the decedent legally owned the gun; ii) know that the specific beneficiary has a license to legally own a firearm; and (iii) adhere to proper transfer procedures,” N.Y. Penal Law §400.00; N.Y. Penal Law §400.05(6), 2017. Legal transfer of firearms from an estate should be performed with the assistance of a licensed attorney in coordination with law enforcement 15-days after the death of a decedent.
Avoid illegal possession with valid gun license.
Illegal possession of a decedent’s registered firearm without following statutory protocol for estate transfer to a beneficiary, is technically considered a misdemeanor offense “criminal possession of a weapon in the fourth degree” within N.Y. Penal Law §265.01, 2016. The beneficiary receiving a decedent’s firearm must hold a valid New York State gun license. Lawful disposal with the assistance of a licensed firearm dealer not performed within the proscribed 15-day period will usually result in the gun being turned over law enforcement. If not legally transferred to the beneficiary within one (1) year of receipt by the law enforcement agency holding the firearm, it will be declared a “nuisance” on record and be destroyed, N.Y. Penal Law §400.05(2), 2017.
Executor exemptions within the law.
New York law exempts Administrators and Executors from violation of the law if the transfer “(i) lawfully disposes of the gun; or (ii) turns the gun over to the police.,” N.Y. Penal Law §265.20(a)(1)(f), 2014. Failure to adhere to state laws of procedure where transfer of firearms assets are concerned can lead to a class A conviction punishable by sentence of up to one (1) year of jail; or three (3) years of probation; and a $1,000 fine under N.Y. Penal Law §265.01, 2016; N.Y. Penal Law §70.15, 2016; N.Y. Penal Law §80.05, 2017).
Be SAFE. Protection from criminal liability.
The New York State Police Firearms Database tracks issued gun licenses; performing update of death records, as well as court records of firearms applicants who have a criminal conviction involving firearms, or those with orders of protection (i.e. mental illness) barring gun ownership and licensing. It is important to note that while the SAFE Act ensures greater regulatory protections where gun licensing is concerned, the law can also be a burden for unsuspecting heirs or beneficiaries unaware of the risk of criminal liability at the time of a loved one’s death.
Ask a licensed attorney specializing in estate law about the legal transfer of an estate owned firearm asset.
Estate Law Attorney Practice
Ettinger Law Firm is a licensed New York attorney practice specializing in estate planning and probate litigation. Contact Ettinger Law Firm to schedule a consultation about an estate law matter.
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