Estate Planning Bequests of Firearms in New York State.

Last Will and Testament Bequests of Firearms Under the New York SAFE Act

The Safe Act makes it illegal for an executor or even law enforcement to just give a firearm directly to the intended beneficiary. By doing so, the executor or law enforcement personal are breaking the law. This action will have very serious consequences. A federal background check must be completed prior to all transfers.

A simple bequest in your will is not enough to ensure the lawful transfer of a firearm upon the time of your death. There are several hoops your executor and beneficiary will have to jump through to make sure the bequest is successful. As a Federal Firearms Dealer and a New York State Dealer in Firearms, Ikkin Arms should be their first contact.

The law must be followed to the letter to protect all parties from potential criminal liability; this is where Ikkin Arms comes in.

The 15 day Rule – Executors in possession of a firearm need to contact Ikkin Arms:

An exception for executors and beneficiaries is specifically carved out in a provision of NY Penal § 265.20.  This provision stipulates when possession of a firearm is not a crime, an executor or beneficiary may possess the firearm for up to 15 days without incurring liability for criminal possession of a firearm. During those 15 days, the executor or beneficiary must dispose or transfer it lawfully.

Your executor has two ways to dispose of any firearm lawfully in those 15 days.

1.      The easiest and safest is to contact Ikkin Arms. 

A.  We can travel to the location where the firearms are stored.

B.  We can take possession of all your firearms, storing them free for 2 weeks. 

C.  We will provide your executor with a complete “inventory” of all the firearms we receive. He  will need to file this receipt with the courts to settle your estate. This is a requirement per NY SCPA § 2509. We have created this legal document for your executor. SCPA § 2509  You will need to use Adobe Acrobat Reader DC to fill out, print and save the form. Your executor will also need our,   Sample Firearms Inventory Work Sheet 

D.  Your executor provides us with a list of your beneficiaries and to whom each of your firearms is to be bequest to. 

E.   We perform all the transfers/dispositions legally with all the required federal and state paperwork as well the required background checks for your beneficiary. 

F.   If any firearms were owned illegally, for example an assault weapon which was not registered, we can attempt to make the firearm legal for transfer to your beneficiary or we can sell it out of state for your beneficiary.

2.      The other option, which Ikkin Arms does not recommend, is to have your executor turn all your firearms over to the police before the end of the 15 days for “safe keeping.”  

A.  Any firearm which the police believe was part of an illegal transaction, or is owned illegally, (assault weapon), is considered a “nuisance” and will be seized and destroyed, meaning your beneficiary does not receive your firearm. 

B.  Once your firearm is transferred to the police, they must keep it safe for up to one year. 

C.  The executor or beneficiary at any time may request the firearm be delivered to a licensed federal firearms dealer. This request must be in writing.  

D.  Your executor will need to provide the licensed dealer with a list detailing which firearm is to go to which beneficiary. The dealer will be required to complete the legal transfer process for your beneficiary. Fees for this can be as high as $75 per firearm. 

E.   Remember, if the written request is not received within one year, the police will dispose of the weapon, either by destroying it or transferring it out of New York State.

Executors who are still in possession of firearms after 15 days are guilty of NY Penal § 265.01, criminal possession of a weapon in the fourth degree.

It is very easy to be charged and convicted of criminal possession of a weapon in the fourth degree. The crime is a Class A misdemeanor, and is punishable by up to one year in jail or three years of probation, plus a $1,000 fine. A person is guilty of NY Penal § 265.01, criminal possession of a weapon in the fourth degree, if he is “in possession of a firearm,” unless he falls into one of the exceptions described below.

If the executor possesses the firearm for more than 15 days without “lawfully disposing” it, he may be criminally liable for that possession and he risks losing the illegally-possessed weapon altogether. “Unlawfully Disposing” of a firearm includes giving the weapon away, leasing it, selling it, offering it for sale, transferring it, or keeping it for sale under NY Penal Law § 265.00.

As a Federal Firearms Dealer and a Licensed New York State Dealer in Firearms, we can lawfully disposal of any firearm; meaning we can sell, give or otherwise transfer the weapon to someone who is licensed to own it.

Why executors need to contact Ikkin Arms.

If an executor or beneficiary is not aware of these laws and how they apply, he could easily get into trouble. For example, an executor who has limited knowledge of guns may find a firearm at a decedent’s home and not realize that it is the type of gun that is regulated by New York as a firearm. Another issue could be that the firearm’s intended beneficiary will not be available to pick it up for over a month or the intended beneficiary is in the process of obtaining his or her license to possess the firearm. It is not uncommon to take up to 1 ½ years to get a permit to possess a handgun.

Also, some guns are not considered “firearms” under NY Penal Law § 265.00, and thus they may be transferred freely, without a licensed gun dealer’s oversight. This includes antique firearms. Antique firearms are defined narrowly in New York State as “any unloaded pistol or revolver with a matchlock, flintlock, percussion cap, or similar type of ignition system, or a pistol or revolver which uses fixed cartridges which are no longer available in the ordinary channels of commercial trade.” All pistols and revolvers are “firearms.”

As mentioned above, executors must file NY SCPA § 2509, which requires a separate “Firearms Inventory” be filed with the court to settle an estate of a decedent who owned firearms. This separate inventory was added by the SAFE Act, as another way to make sure the state can track firearms at every transfer. It is not a complex form, and is merely informational for the court, but does put another item on an executor’s to-do list. Ikkin Arms will provide your executor with that form.

Remember, New York’s gun regulation laws, many of which were present before the SAFE Act, are traps for the unwary. Ignorance of those laws is not a valid defense.

The Duties of your Beneficiaries:

You should talk to the intended recipient of the firearm about getting the proper license to own the firearm. As a reminder, it has been known to take over a year to get a license for a handgun. Keep in mind that criminal convictions of serious crimes and felonies carry the additional consequences of prohibiting a defendant from obtaining a license to own a firearm, and from possessing any guns, including those that do not fall within the statutory definition of “firearm.” Most importantly, discuss gun-safety practices with both your executor and the intended beneficiary, especially addressing any safety practices that may be unique to your firearm.

Make the first step:

Let your intended executor know if you own a firearm, where it is kept and to whom you would like him to transfer it upon your death.

And most importantly, contact Ikkin Arms.