Copying a NFA trust?

Discussion in 'Class III / NFA' started by Porter, Jun 30, 2008.

  1. Porter

    Porter Member

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    Houston
    A friend of mine had a trust written up, and has it in electronic form. What would prevent me from taking a copy of his trust, changing the pertinent bits (trustee, co-trustee, and beneficiary), having it notarized, and using it for myself? Possible moral issues aside, what legal issues could arise from doing such a thing?

    Honestly, it looks like the lawyer who wrote it up just used a template, and put his name(s)/county in the proper places.
     


  2. ducksps

    ducksps Active Member

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    That's a legal question for sure. If your buddy had the trust written for NFA items perhaps, but not being a lawyer nor privy to the document I don't know what to say and would advise against out of caution. NFA items in this politcal climate could be very touchy and I would pay a pro and get it done correctly and let my imagination rest.
     
  3. baboon

    baboon Well-Known

    There aint a damned thing stopping you from putting you name & information were his is other then him letting you. unless he wants to recoupe some of the cost involved in either buying willmaster or getting an attorney to draw it up.
     
  4. tvone

    tvone New Member

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    I bought Willmaker, and followed the instructions. No problems with the paperwork and I was approved and picked up my CIII in 9 weeks.
     
  5. Gun Trust Lawyer

    Gun Trust Lawyer New Member

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    Trust's

    Much
    of a Trust is a template, but it is only after speaking to the individual and finding out what they particular circumstances are, that you know which parts to include for an individual. Generally a trusts are not copyrighted, but you might check to see if they are.

    A typical gun trust is not very expensive and a good amount of the cost is in teaching the individuals how to use the trust correctly. Must of the information that is on the
    Internet
    in regards to the process and how to use quicken will work to purchase
    NFA
    items, the only problem is most purchases and a fair number of trusts are invalidly created by making the wrong choices when creating the trust and/or purchase.

    Some individuals are only concerned about acquiring the weapon, others look at the bigger picture and want to protect themselves, family, and friends from the criminal and
    civil
    penalties associated with the improper possession, transfer and purchase of an
    NFA
    item.

    I have reviewed many quicken trusts that are actually invalid. As such the trust does not exist, and because of this the purchase was no proper, and there is a violation in the transfer and possession of the items as well.

    I am currently working on a memo on many of these topics which I expect to post online in the next day or two. I would be happy to send you a copy if you email me directly

     
  6. ducksps

    ducksps Active Member

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    Please post the update to the board for us all to examine.

    Regards,
    Chris
     
  7. Gun Trust Lawyer

    Gun Trust Lawyer New Member

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    Draft of Gun Trust issues outline

    Here is a draft of the outline. The full version may be found in the next few days on my website which deals with NFA gun trust legal issues for each state.
    Gun Trust information

    1. Types of ownership - Individual, Entity ( Corporation, LLC, or Trust), dealer.

    2. People involved in the formation of a trust
    a. Grantor / Settlor – The person who contributes the property to the trust
    b. Trustee / Co- Trustee: The people authorized to be in possession and/or manage the items in the trust.
    c. Successor Trustee: The person or people who will manage the property in the event that all of the Trustee’s are not able to or do not wish to be trustee’s any more. ( This can also be caused by the death of all of the original trustees)
    d. Beneficiaries – The person or people who will receive the items or the assets of the trust upon the death of the Grantor’s/ Settlors
    3. First – Who should be the Settlor and why? To answer this we must know the answers to a few questions
    a. Are you married? How does your spouse feel about the firearms
    i. Potential answers:
    1. My spouse shoots with me
    2. My spouse tolerates them but would not have them destroyed upon my death
    3. My spouse, would bring them to the police station and have them destroyed upon my death
    b. Do you want anyone else (who is identifiable) to be able to be in possession or use the weapons? If you were to die, would you want this person to be able to “own” & “use” & do anything with the items during their lifetime?
    c. Does anyone know the combination to the gun safe? Are you willing and able to change the combination and keep those people from having access to the items?
    i. CONSTRUCTIVE POSSESSION: Just like a speeding ticket where there is no intent required to speed, and no defenses available because you did not know you were speeding, or did not mean to speed, or there was an emergency – There is no intent required to be convicted of constructive possession. If someone has potential possession of a class iii firearm, because you have not taken or are unable to take the steps necessary to secure the item from others, they are in violation of the NFA. Furthermore, you are also in violation because of an invalid transfer and failure to secure the items.
    4. Second- we determine who the trustee’s will be. More than 90% of the time they are the same as the Settlors. Remember the co-trustee, is not the beneficiary, their duty is to manage the property for your benefit, and for the benefit of your named beneficiaries ( typically siblings, gun enthusiastic friends, and children even if minors )

    5. Third – Who will the beneficiaries be?
    a. Do you have children, how old are they, do you want to leave your class 3 firearms to them after your death
    b. NOTE: You cannot be the beneficiary of your trust when you are the Settlor and the trustee? This will create an invalid trust. If the trust does not exist and you fill out the paperwork for the trust to make the purchase, you are technically in violation of the NFA because you an individual will be in possession and not the trust. The trust could not be in possession because it will not exist. 25% of all clients as to name themselves as the beneficiary. This leads me to believe that a similar or greater number could be naming themselves in a quicken or fill in the forms trust and exposing themselves and who ever else is in possession, or constructive possession of the items to the criminal and civil liability that is associated with the improper transfer or possession of a Class 3 Firearm.
    6. Some of the reason why a trust is the best way to own a NFA Firearm:
    a. Only with a trust or other business entity can more than one person have access to or use the Class III items.
    b. A Trust or business entity does not require a CLEO signature, local background check or fingerprints to be submitted with the application.
    c. A trust purchase get the application to the ATF 3-8 weeks sooner on average.
    d. Most business entities require registration, annual fees, and / or accounting and tax returns to be filed – a revocable trust is private, not registered with the state, and in most states requires no fees.
    e. A trust or other business entity can make purchases year after year without the risk that the CLEO will change.
    f. Lets face it, we do not know who will survive us and there is no way to prepare our spouse, family, relatives, or friends to the complex issues associated with Class 3 possession, transfer, or ownership without some background and a guide. Even if we knew who would survive us, or were able to prepare some instructions, how would we deal with changes in the laws from today until the day we died. Would or survivors justifiably but illegally rely upon our instructions and find themselves in trouble. Could we anticipate all of the scenarios and plan for them accordingly. The answer to many of these questions is probably not.
    7. Lets talk about Form trusts like quicken.
    a. Can Quicken be used to purchase an NFA restricted or class III item? Sure it can. If the right answers are choosen, a valid trust will be created, and these items can be purchased.
    b. Does quicken comply with state laws, generally there are few requirements for a valid trust under most state laws and after hearing this presentation, your change of creating a valid trust are better.
    c. The main problem with a forms packaged trust is that they are setup for a traditional asset, a vehicle, home, bank or stock account or other tangible item which can be though of as an investment.
    d. At best a Class III firearm is a speculative investment and as such most states Probate or Trust code would prohibit the investment in such an item. The good news is that the list of people who can complain about this is short. They are the beneficiaries or initially yourself. As you will see most of the deficiencies with a fill in the blank trust are not while you are alive, but after you die. One you die, your beneficiary, could bring an action against your successor trustee for failure to diversify or make prudent judgments, or because the used the items.
    e. I am not sure if you caught that but with Quicken, the trustee is not permitted to use them items. You might be saying, I am using Quicken to create a trust, to purchase items that I want to use, why would I not be able to use them. The answer is simple, if you use the items, the devalue, this is a breach of the duty that is created under the trust. Although this may not be a problem for you, it can be for the other trustees.
    f. The next issue with Quicken is dealing with constructive trusts
    g. Combination of trusts. Quicken and most trusts provide that similar trusts can be combined. Our trust specifies that if this happens the NFA trust will be the surviving trust so that the benefits of the language and flexibility of the powers and duties are not lost.
    h. Powers of the trustee – Quicken does not advise the trustee on how to purchase, distribute, or possess the items, nor is the power to use the items available to the Trustee under the Quicken Trust.
    i. Quicken does not teach you how to properly make the purchase or use the trust for NFA purposes.
    j. Which state laws need to be looked at in the following situations?
    i. After your death your child lives in Alabama?
    ii. You take a job in Washington DC for a year?
    iii. You and your spouse get divorced and want to split up the asset of the trust?
    k. Your friend and co-trustee/Settlor moves or you have a falling out and decides he/she no longer wants a trust or NFA items – how will the items be divided, will the proper property rights be maintained.
    l. You die with debts, a quicken trust will direct the sale of the NFA items to pay your debts. This is contrary to the desires of most NFA owners- they want to preserve their class III items and pay the debts from other monies if possible.
    m. You might get a spendthrift provision, but is this right for you, quicken will not tell you how to deal with this circumstance and advise your heirs on your wishes should it be invoked.
    n. Quicken does not allow for unequal distribution of assets to preserve the items, and would require sale of items to give the same dollars to each beneficiary.
    o. Quicken does not give the successor trustee the ability to determine if the distribution of the items is a good idea when looking at the child or adult as of the time of your death. I have a 9 year old son, and I have no idea who he will be at age 25 or even 50. I hope he is legally able to possess the items, and even more I hope he is in the right frame of mind, but there is no way of knowing that in advance.
    i. Potential solutions include selling the items for cash
    ii. Taking the wait an see attitude lets wait until the current emotional issues has passed and reevaluate the situation
    iii. Lets wait until the child reaches 25 and then make the decision.
    8. Do I deed a bank account and what why?

    The rest has not been finished as of this posting but will be on my GunTrustLawyer.com website
     
  8. Porter

    Porter Member

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    Jun 3, 2008
    Houston
    Just to update a little bit here. It is a purpose written NFA gun trust, and my friend and I both have similar requirements for the trust. Both of us want our girlfriend to have access to any items listed on the trust, and we both want to name a beneficiary. I don't see why this wouldn't work.
     
  9. Gun Trust Lawyer

    Gun Trust Lawyer New Member

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    NFA trustee question

    You can make your girlfriend a trustee - This will allow her access and use of the firearms. In addition, a separate beneficiary other than yourself should be named, that can be your girlfriend as long as she is not a trustee and a settlor.

    David Goldman
     
  10. sharky47

    sharky47 Active Member

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    May 4, 2008
    David - can you perform a NFA trust formation for someone in Texas? Your posts have been most helpful and you went out of your way to help everyone understand - that makes me want to do business with you.......
     

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