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Gun ownership is a very important subject for many individuals in New York State.  As most know, New York State has many regulations regarding gun ownership. One of the most important items individuals need to be aware of is the legality of transferring a firearm to beneficiaries through an estate. If the correct procedures are not followed, there are potentially criminal ramifications for an executor of an estate or a beneficiary of the firearm.

A simple bequest in your will is not enough to ensure lawful transfer of a firearm at your death. There are several hoops your executor and beneficiary will have to jump through to make sure the bequest is successful. You will want to make sure they are both as prepared as possible.

The NY SAFE Act has increased the red tape involved in the transfer of firearms in New York State.  It has been the intended goal of the legislature to remove weapons from the stream of commerce by enacting complex procedures to transfer weapons between individuals. A firearm which is part of an illegal transaction, or is owned illegally, is considered a “nuisance” and may be seized by the state and destroyed, thus removed from the stream of commerce.

If an executor gives a firearm directly to the intended beneficiary, without a) knowledge of whether the decedent legally owned the weapon, b) knowledge of whether the beneficiary may legally own the weapon, and c) adherence to proper transfer procedures, the executor is taking an unnecessary risk which could have serious consequences.

When the proper procedure is followed, there are no risks of criminal liability or of losing the weapon. With some knowledge of the law and some careful planning and execution, an individual should be able to transfer a firearm at death, legally, without the criminal consequences.

An executor or beneficiary may possess a “firearm” (as such term is defined in the Penal Law) for up to 15 days without incurring liability for criminal possession of a firearm. During those 15 days, the executor or beneficiary must either dispose of it lawfully, as described below, or turn it over to the police by the end of the time period for safe keeping.

Once the firearm is transferred to the police, they must keep it safe for up one year. The executor or beneficiary may request the firearm be delivered to someone who is legally able to possess it, such as a licensed firearms dealer or a properly licensed beneficiary. If a written request is not received within one year, the police may dispose of the weapon, either by destroying it or transferring it out of New York State.

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. Or perhaps 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.

If the executor possesses the firearm for more than 15 days without “lawfully disposing” of it, he may be criminally liable for that possession and he risks losing the illegally-possessed weapon altogether. “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. Lawfully disposal of a firearm involves working with a licensed gun dealer to sell, give or otherwise transfer the weapon to someone who is licensed to own it.

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 rifles with barrels over 16 inches in length, shotguns with barrels over 18 inches in length, and 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.”

Another procedural hurdle for executors to consider is 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.

These are some of the traps for the unwary in New York’s gun regulation laws, many of which were present before the SAFE Act. 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. Let him know if you have not properly registered the firearm, so that he can surrender it immediately and avoid criminal liability.

Talk to the intended recipient of the firearm about getting the proper license to own the firearm. 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.