Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
According to the Giffords Law Center to Prevent Gun Violence, New Jersey has the second strictest gun laws in the nation behind California. As demonstrated this past summer, that legal landscape is ever-changing. While much attention was paid to the U.S. Supreme Court’s June 23rd ruling expanding the right to carry concealed handguns outside the home, many families have given little thought to the implications raised by the transfer of a firearm following a death. This article will discuss the appropriate way to bequeath and inherit firearms in New Jersey and help current gun owners continue their legacy of responsible ownership beyond their passing.
Is a Firearms ID Card or Handgun Purchase Permit required?
Under typical firearm transfers, the receiving party must be a federally licensed dealer (“FFL”) or have a valid Firearms Purchaser Identification Card (“FPID”) and the parties must complete a Certificate of Eligibility. In the case of handgun transfers, the receiving party must obtain a Handgun Purchase Permit (“HPP”). These requirements exist even in transfers between family members.
However, in the case of inheritance, neither a FPID nor a HPP are required for the transfer of a firearm upon the death of an owner, whether the transfer is by will or by intestacy. Importantly, the recipient must still meet the legal requirements for possessing the firearm.
The transfer to an heir is a unique exception to the otherwise onerous requirement of applying for and receiving either an FPID or HPP. This exception does not apply to revocable trusts and for this reason, it is preferable to bequeath a firearm through a last will and testament. The recipient of a handgun should consider applying for a FPID or HPP, as they are required for the purchase of handgun ammunition.
Who Can Inherit a Firearm?
In order to inherit a firearm, the firearm must be legal to possess in New Jersey and the person receiving the firearm shall not be prohibited possessing the firearm under the 13 restrictions set forth in N.J.S. 2C:58-3j. Some of those restrictions state that an heir cannot:
- Have been convicted of any crime, or a disorderly persons offense involving an act of domestic violence;
- Be dependent on a controlled dangerous substance;
- Be a habitual drunkard;
- Be confined for a mental disorder to a hospital, mental institution or sanitarium;
- Suffer from a physical defect or disease which would make it unsafe for him/her to handle firearms;
- Be under the age of 18, or under the age of 21 if the transfer is of a handgun.
See the statute for a complete list of the restrictions.
If a person is prohibited from possessing the firearm under one of the restrictions in the statute, he or she may maintain ownership of the firearm for a period of 180 days to facilitate its sale. However, the firearm must be in the custody of the chief law enforcement officer of the municipality, or the Superintendent of State Police.
Transferring the Firearm Out of State
A firearm may be inherited by an individual residing outside of New Jersey, provided that the heir is permitted to possess the firearm in the heir’s own state. While interstate transfers without a federal license are normally prohibited, 18 U.S.C. 922(a)(5) provides an exception for transfers of firearms to nonresidents to carry out a lawful bequest or acquisition by intestacy.
Other Considerations for the Responsible Transfer of a Firearm in an Estate
- Have a plan for ensuring the security of the firearm. The recipient should consider the risk of unauthorized use by children or others, and the possibility of theft.
- Consider partnering with a federally licensed dealer during the administration, who could take custody of the firearm during the probate period while the executor determines how to distribute the firearm.
- Ensure lawful transportation of the firearm under N.J.S. 2C:39-6(g). Absent a permit to carry, an individual may only transport a firearm to certain authorized destinations and by properly stowing the firearm unloaded and contained in a closed and fastened case, gun box, securely tied package, or locked in the trunk of the automobile in which it is being transported, and in the course of travel shall include only deviations as are reasonably necessary under the circumstances.
- Avoid undervaluing the firearms. As with many estate assets, the value of a firearm could vary greatly depending on the age, manufacturer, model, rarity, etc. Therefore, consider having the firearm appraised.
- Some heirs may lack an interest in possessing the firearm. Any subsequent transfer of the firearm must comply with the statutory requirements applicable to all transfers, even among family members. The inheritance exception only applies between a decedent and the heir. An heir may always consider surrendering the firearm to local law enforcement.