Families, Fiduciaries and Firearms: Estate Administration and Distribution of Firearms in the State of Washington

by Davis Wright Tremaine LLP

The ownership of firearms has been a topic of much debate and scrutiny in recent months. As a part of this national conversation, it is important for gun owners (and their fiduciaries) to generally understand the applicable legal regulations pertaining to the transfer of a firearm triggered by the death of the owner, and how to appropriately execute such transfers.

The state of Washington has specific statutes that govern the proper transfer of gun ownership upon the death of the original owner. The personal representative of an estate that contains a firearm can be subjected to potential criminal liability for improperly transferring a firearm to a beneficiary that is disqualified from such ownership. As such, the personal representative must be very careful to avoid violating federal, state and local laws while administering and distributing a firearm.

Generally speaking under Washington law, most transfers of a firearm are subject to a background check on the transferee to determine if the transferee is qualified to receive and own the firearm. A personal representative who comes into possession of a firearm as part of the administration of an estate has a duty to properly transfer the firearm according to applicable laws. Washington state law suggests that a gun that is not a pistol can be transferred by a personal representative to a beneficiary without the need to follow further state procedures, although it may still be recommended for the personal representative to follow the procedures as they apply to the transfer of a pistol (as described below). Federal laws also might require the personal representative to follow additional transfer requirements if the firearm is not a pistol, but is a machine gun, silencer, short shotgun, or other type of firearm that are more specialized and dangerous.

The transfer of a pistol by a personal representative is expressly regulated under Washington state law. Essentially, the beneficiary of such pistol must be properly vetted to determine if he or she can own the gun. Statutes mandate that the personal representative of an estate must deliver the pistol to a licensed gun dealer so that the dealer can then process the transfer to the beneficiary just as if the dealer was selling the firearm from its inventory. Once the pistol has been received by the gun dealer, the dealer works with the beneficiary to complete and submit all necessary federal and state forms to process a background check on the beneficiary. During this process, the personal representative can take back possession of the pistol, in a fiduciary capacity, or leave the firearm with the dealer. If the beneficiary qualifies to own the firearm, then the dealer can handle distributing it to the beneficiary, and will register the pistol with the beneficiary. However, if the beneficiary does not qualify to receive the pistol, the dealer will return it to the personal representative and the gift to the beneficiary will lapse.  Arguably, if the pistol is not the subject of a specific gift, then the personal representative would have the authority to sell or destroy the firearm at its discretion if it is in the best interest of the estate, although it may be beneficial for the fiduciary to first check with other beneficiaries of the estate to see if one of them wants to receive the gift (after the appropriate background checks).

If the beneficiary of a pistol takes possession of the firearm before the personal representative obtains it, the beneficiary has sixty days to either legally transfer it to the personal representative or notify the appropriate state and federal departments that the beneficiary has possession of the pistol and intends to retain possession of the pistol, in compliance with federal and state laws.

If a personal representative or other fiduciary acquires possession of a firearm upon the death of the original owner, the best procedure would be to immediately notify the attorney for the estate, or another attorney, so that the fiduciary can learn of and follow the proper steps to transfer the firearm without risk of criminal liability. A firearm is a unique asset compared to other estate property, and must be administered and transferred with the appropriate level of care and consideration.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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