Estate Planning for Firearms in California

Despite California’s ever more restrictive firearms laws, there are an estimated 4.2-million-gun owners in this state. [1]   For those who relish the rights afforded by the Second Amendment to the United States Constitution, their firearms and accessories are more than just items of personal property – they are symbols of their love of and dedication to family, friends and freedom.  How do they ensure that future generations are able to enjoy their firearms with as little interference from regulatory powers as possible?  Understanding California’s laws governing the possession and transfer of firearms and related accessories is the first step.

California’s restrictions expand upon the Federal prohibitions for firearm possession.  California law imposes a temporary (5-10 year), or sometimes lifetime, ban against certain individuals possessing firearms and related items.  For instance, those with felony convictions, those convicted of firearm related misdemeanors, those found by a court to be a danger to others as a result of a mental disorder, incapacitated persons and those addicted or using narcotics are prohibited from owning, possessing and transferring firearms. 

Minors are also prohibited from personally possessing firearms in California.  While minority generally extends to age 18, California Penal Code Section 27510 prohibits a licensed California firearm dealer (“FFL”) from delivering or transferring possession of a firearm to anyone under the age of 21.

California imposes restrictions on how firearms and related items are transferred through a probate or trust estate.  Generally, it is illegal for any person who is not a California licensed firearm dealer to sell or transfer a firearm to another non-licensed person (a private party) unless the sale or transfer is completed through a licensed California firearm dealer (“FFL”). 

There are several exceptions to this requirement.  For instance, no dealer involvement is required for transfer of a firearm done in this state “by operation of law”. [2] The term “operation of law” is not specifically defined, but the Penal Code does give a non-exhaustive list of examples which include trust and probate administration. [3] Transfers between immediate parents and children (or grandparents and grandchildren), as well as spouses and domestic partners, do not require FFL involvement so long as both parties are residents of California. [4] Note that intrafamilial transfers are limited to 6 transfers per year with a total of 50 firearms.  Out of state transfers always require the use of an FFL.

Though no FFL involvement is required, transfers of handguns within California must be reported to the DOJ using their forms and submission system.  These reports are required not only for the ultimate beneficiary, but also for the trustee or executor who is controlling the firearms during the administration of the estate.

These restrictive transfer laws make ensuring that firearms and accessories are inherited and enjoyed by the intended beneficiaries more difficult.   However, with appropriate planning documents in place, it can be accomplished.   An integrated estate plan should absolutely include provisions regarding the identification, storage, use, possession, transportation and transfer of all firearms. 

A suite of estate planning documents should include a private [5] list of all firearms and accessories included in the estate (including make, model and serial number). This information is essential to ensure that the person trusted to manage your estate ultimately accounts for all firearms, which will help limit potential liability. Identification of the firearms also is the first step to a designation of the beneficiary who will receive each item. Identifying individual beneficiaries helps to ensure that firearms are not designated for inheritance by any prohibited person, which would likely require the firearm to be sold through an FFL. 

Careful consideration must be also given to the nomination of the person who will manage the estate.  This person must qualify to possess firearms in California and must actually obtain a Firearm or Handgun Safety Certificate prior to obtaining the firearms.  He or she must also be aware of and understand the laws regarding the possession, storage, transportation, security and transfer of firearms in California.  Once in control, this person is responsible for all aspects of the firearm ownership until transferred per the terms of the estate.

This brings us to the inclusion of directions regarding firearms in a trust instrument.  A revocable living trust should include, in addition to terms regarding the disposition of the items, a section or addendum describing California’s firearm laws and guiding the Trustee in how to effectively navigate them and complete the necessary transfers safely and legally. This is especially true when your trustee is not a “gun person” or is unfamiliar with California’s specific regulations. Since California imposes criminal liability for improper possession, storage, transportation or transfer of any firearms, these directions will relieve your successor of such worries and make them more agreeable to serving as the representative of your estate. Having these rules and procedures outlined in black and white will also avoid conflict with beneficiaries who do not want to follow the State’s laws.

Creating a separate “Gun Trust” is beneficial where there are firearms, and possibly other property, which are intended to be held in the family for use and enjoyment by several future generations. [6] For instance, where firearms are intended to be inherited by a minor, the firearm will have to be held in trust until the beneficiary can legally possess the firearm on their own.  Because most revocable living trusts are not intended to hold assets for an extended period of time, using a stand alone “Gun Trust” allows the rest of your estate to be distributed while still maintaining your collection for your beneficiaries’ use and enjoyment.  This type of trust can also be funded with other assets such as cash to fund firearm education and training or a cabin where hunting rifles are kept and used intermittently.  California law allows for a trust of this nature to exist for up to 90 years allowing for continued enjoyment and participation in these family activities for many years to come.

Please contact Senior Attorney, Anastasia Salmon, at DROBNY LAW OFFICES, INC. if you would like to discuss the inclusion of firearms in your estate plan.

[1] Kravitz-Wirtz N, et al. Injury Prevention 2019 DOI:10.1136/injuryprev-2019-043372

[2] California Penal Code § 26505

[3] California Penal Code § 16960

[4] California Penal Code § 27875

[5] It is important to note that if Probate is required, a full list of all firearms and accessories will be included in the Inventory and Appraisal of the Estate which is public record.  A Trust provides better privacy protection.

[6] Please note, the use of a National Firearms Act Gun Trust to allow for possession, use, and transfer of Title II firearms and accessories will be addressed in a subsequent article in this series.    

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