How to set up a revocable living trust to purchase National Firearms Act (NFA) weapons.
By Mark S.
Updated August 18, 2009
So you want to buy a machine gun or a suppressor or you want to build your first short barrel shotgun? Well, first you need to find out if you live in a state that allows civilian ownership of the National Firearms Act of 1934 (NFA), or what are sometimes mistakenly referred to as Class 3 weapons. If you live in Arizona, like I do, then you have nothing to worry about. If you can't determine whether your state allows these weapons, just ask your local gun dealer, they'll know. Some states ban all NFA weapons, others just ban certain types of NFA weapons.
What are NFA weapons? Essentially they are: machine guns, sound suppressors (also known as silencers or cans), all shotguns with a barrel length less than 18", all rifles with a barrel length less than 16", destructive devices, and "any other weapons" or AOW for short. AOW includes cane guns, pen guns, smooth bore guns, and a couple other devices.
I also mentioned the term Class 3. NFA weapons are sometimes called Class 3 weapons for the reason that a Class 3 SOT (Special Occupational Taxpayers license) is required to sell NFA weapons. Not all gun stores have a Class 3 SOT and therefore can not deal in these kinds of weapons sales. It's not really a Class 3 weapon, it's an NFA weapon. The terms have just become synonymous with misuse.
NFA weapons are also referred to as Title 2 weapons. The reason for this naming convention is that Title 2 of the 1968 Gun Control Act is the National Firearms Act (NFA). The NFA requires the registration and taxation of certain types of weapons with the federal government via the Bureau of Alcohol Tobacco Firearms and Explosives (BAFTE). You must also receive BATFE written permission before moving the firearm (short barrel rifle, short barrel shotgun, machine gun, or destructive device) across state lines.
If you are not a prohibited possessor of firearms in general, and your state allows ownership of NFA weapons, then you can buy or make one yourself. The process is straight forward:
- Find and purchase the weapon you want through your local Class 3 gun dealer. You can also perform a Form 4 transfer between private citizens at a Class 3 gun dealer (or without the dealer if both parties are in the same state). The dealer will start the paper work once the item is paid for (the paper work is weapon specific, and must have measurements, or serial numbers as needed).
- File the appropriate paper work, usually a BATFE Form 1 or Form 4 (including fingerprints, your recent photo, and a signature from your local chief law enforcement officer (usually the sheriff), and send in the standard fee of $200). If you are transferring an AOW then the fee is only $5.
- Wait one or two months, or longer if there are errors in the paper work, for approval and pick up your new NFA weapon at the Class 3 gun dealer.
Now while that may seem to be a simple process, many people have run into chief law enforcement officers (CLEOs) that don't understand what the sign off on the BATFE form is and won't sign it. The reason why the BATFE wants a CLEO signature is to attest that the CLEO has no reason to expect the applicant to commit any wrong doing with the weapon they are making or transferring. The CELO also attests that the applicant will not be in violation of state or local law by possessing an NFA weapon.
Regardless of what the BATFE forms state, CLEOs are under the assumption that they become responsible in some way for your actions should you do something wrong with the weapon you are trying to acquire. CLEOs don't want to suffer for your actions. Other CLEOs feel this is a political issue, and don't like the idea of civilians in their jurisdiction arming themselves with weapons they don't need. Some CLEOs don't mind signing off, but have a stringent background check that might disqualify you because of something as simple as a traffic ticket, even if your violation was 10 years ago! Note: Arizona residents, I have heard that as of 12/02/08 that Sheriff Joe Arpaio's office (Maricopa County) is signing off on forms with about a 10 day wait.
One day, some smart person realized that the BATFE forms for acquiring NFA weapons also allow for corporations and trusts (among other business entities) to legally acquire NFA weapons. This is important for several reasons:
- A business entity, like a corporation or trust, can not be fingerprinted or photographed.
- A business entity is not required to obtain the signature of their local CLEO because a business entity has no criminal background to investigate, unlike a private citizen.
- Since no fingerprinting requirement exists, the process of acquiring an NFA weapon can decrease from two to three months (or longer) to just a few weeks because the FBI doesn't have to process a fingerprint card.
- Your CLEO does not know what NFA weapons you have, or where you live. The existence of your NFA weapons are known only to the BATFE.
Intrigued yet? Ready to form your own business entity?
Before I continue I need to state that I am not an attorney. I am only passing along the information of what has worked for others. I still have yet to go through this process myself! Some prefer going to an attorney to draft legal documents, especially when dealing with the federal government. The BATFE can impose a $250,000 fine with a 10 year prison kicker for anyone caught with an improperly, or unregistered NFA firearm. This situation could arise if your trust documents and assignments of property documents aren't kept in proper order. I can certainly appreciate someone being hesitant about a do it yourself solution to purchasing NFA weapons, and understand why some choose to employ an attorney.
You should also be aware that while the BATFE will approve your weapons transfer, you may still not legally be in possession of the weapon! The BATFE has been scrutinizing trusts as of late. Read this article about one person who used Quicken to create a trust, the BATFE approved his weapon transfer, and now the BATFE wants to seize his weapons and may prosecute him!
I have received many e-mails from around the country asking for more information and specifics (pertaining to their state) on how someone can set up their trust to make purchases with. I tell everyone who writes me, that I can not provide any more information than is already in this article. I am certainly no expert, just good at explaining things, and I only know the rules for the state of Arizona, of which I'm a resident. If you are uncomfrotable with this process, then by all means, hire an attorney to draft the trust for you. There should be no doubt in your mind, ever, that your trust is invalid for any reason.
Now with that said, it's very easy to make a legally binding revocable living trust (also referred to as a living trust or revocable trust) with the latest legal document generating computer programs. Just pay attention to the details, it's essentially a very standard form. It's called a living trust because you create it while you are still alive. It's revocable because as long as you remain alive, and in control of your mental faculties, you can change or cancel the trust at any time. When you die the trust becomes irrevocable or unchangeable.
Many use the Quicken WillMaker program to create this trust. Purchase Quicken WillMaker 2009 here. You can buy it through the mail for $56.69, or you can just download it immediately for the same price. Others have used the Cosmi Perfect Wills, Living Wills, Trusts and Estate Planning software. You can buy it online for $19.99 direct from Cosmi here. They do not offer an electronic download service though. You might check with your local computer or book store to see if they have either of these programs in stock.
You can also create a limited liability corporation (LLC) to acquire NFA weapons, but I feel the financial burdens and tax filings make it far less appealing than a trust. A trust costs nothing to create outside of the software program costs and the costs for the notary to notarize your Declaration of Trust and your Certification of Trust. There are no renewal costs, you don't have to file with the court (at least not in Arizona), and you file your taxes normally.
At this point I'm going to cover how to create a sample trust.
Start Quicken WillMaker. Note: I used the 2007 version to write these instructions with. Look at the top left of the program screen where it says "Choose a category from the drop-down list" and select "Estate Planning". Now select "Living Trust - Basic Trust". Don't worry about the naming convention here, the program will create a revocable living trust. Then at the bottom click "Create Document". Select your state and check the box for your marital status and click next. Now decide if you want an individual living trust or a shared living trust. I picked shared. Enter your name and your spouses name as you want them to appear on the trust documents. Both of you will serve as the grantors and the original trustees of your trust.
I would highly recommend using your full legal name(s) for the name of the trust. Why? If you are ever out in public shooting your NFA weapon and a law enforcement officer asks to see your paperwork (your BATFE Form 1 or Form 4, not your trust), I would want to make sure it was very clear when they read my papers that it was obvious that I was the owner of the weapon(s) in question. If you name your trust The Mickey Mouse Crazy Big Gun Trust, you might have a hard time convincing the law enforcement officer that you are an official representative of The Mickey Mouse Crazy Big Gun Trust and that the NFA weapon really belongs to you. At the point things could start getting ugly.
Eventually, after assigning many people to different administrative roles in your trust, you will arrive at a screen where you can enter personal property into your trust. Later in this article I provide an example trust document that uses one U.S. dollar as an example of bequeathing personal property. Keep in mind this trust will be notarized, so I would think seriously about and document exactly what personal property will be given to which family member(s) or friend(s).
Next you'll decide how to distribute the wife's trust property upon her death. Then you'll do the same thing for the husband's trust property. When you are finished you will have a chance to print the document. There is one thing I don't like about Quicken WillMaker and that is you can't customize the name of your trust from within the program. If you like your trust being named only after you and your spouse's name then you have nothing to worry about. If you'll be creating several living trusts, then you'll want a more unique name for the trust containing only your regular weapons and NFA weapons. No problem, click on "Export" and it will save the trust document as either a text or rich text file. I recommend rich text because the formatting will be preserved (along with the page footers which you must have). You can then modify this file to rename the trust how you'd like.
Make absolutely sure you rename every
occurence of the trust name throughout
the document or you could render your
When you are done making your changes, save the document and if it isn't already opened with Word, then import it into Word (that's what I do). Look over your pages and compare them to the original document within the program to make sure your footers at the page breaks are lined up correctly. Print it when you are ready. At this point you have now printed your Declaration of Trust, a Certificate of Acknowledgement of Notary Public, Schedule A, Schedule B, Schedule C, an Assignment of Property letter, and a Letter to the Successor Trustee.
When you have finished printing your documents click the "Close Preview" button. Click the "Return to Document List" button. You should now be back at the document selection screen. Click on "Living Trust - Certification of Trust", then click the "Create Document" button. At the next screen you will have to enter the date you signed the trust document. Put in a date that you know you can sign your document with your spouse in front of a notary. This is a Catch 22 situation because you should take both your Declaration of Trust document and your Certification of Trust document to the notary at the same time. However, you can't print the Certification of Trust document until you have provided the date that the Declaration of Trust document was signed. This is just the way the program is set up, they want to make sure you can't make any changes to the Declaration of Trust document once you claim you've signed it. Next enter your address. Print or export your document and you are done.
Below are sample documents produced by Quicken WillMaker 2007 saved in Adobe Acrobat PDF format. If you do not have Adobe Acrobat Reader, you can download the program here.
Declaration document Certification document
The Declaration of Trust is the legal trust, it contains the names of everyone involved in the administration of the trust, the property owned by the trustees, and any instructions for who gets what property upon death. The Certification of Trust only attests that the Declaration of Trust exists. When you have these documents signed and notarized put them in a safe place and only handle copies of these documents when needing to provide them to anyone. You should do the same with any form you get back from the BATFE: secure the originals and always carry the copies with you when out in public with your NFA weapons.
When you are ready to file your paperwork with the BATFE, include a copy of the Certification of Trust document. Make sure you send a copy of your notarized document and not the original. I would not send them a copy of the Declaration of Trust document because I don't see a reason to let the BATFE know who all the administrators of my trust are, or what is in my trust. The less information the government has about you on file, the less it can lose. Remember those millions of records the Veteran's Administration lost not to long ago? Well, that employee wasn't supposed to take that particular computer home with him. I bet the BATFE doesn't have 100% flawless computer security either.
There is a website called Title II that hosts various BATFE forms online. You can visit them here. I also host many BATFE forms right here.
Here are examples of what proprerly filled out BATFE forms should look like (when using a trust). There is an Application to Make and Register a Fiream, Form 1 (5320.1), an Application for Tax Paid Transfer and Registration of Firearm, Form 4 (5320.4), and a Certification of Compliance with 18 U.S.C. 922(g)(5)(b), (5330.20). To see a larger version of the forms just click the images below.
Form 1 (front with tax stamp)
Form 1 (back side)
Form 4 (front with tax stamp)
Form 4 (back side)
Certification of compliance with 18 U.S.C. 922(g)(5)(b)
BATFE Form 1 is for making an NFA weapon (including shortening an already existing shot gun or rifle), Form 4 is for purchasing an NFA weapon. Update: I have heard that the BATFE no longer accepts certificates of trust with a Form 1 or Form 4. You must send in the declaration of trust instead. When you are ready to buy your NFA weapon, take a copy of your Certification of Trust to your Class 3 gun dealer and let them fill out the appropriate sections of the BATFE Form 4. You will file two copies of the BATFE Form 4. Fill out the sections of the form that apply to you (see sample images of completed documents below). When filing a Form 1 or Form 4 make sure the document is double-sided. Do not send this form in as two separate one- sided sheets, it will be rejected by the BATFE and sent back to you. Include a check or money order for $200 made out to the Department of Justice. You might want to include signature required for delivery or a return receipt on your package if you are paying with a money order or cashier's check, since you won't know when they cashed your payment.
BATFE changed their address for form submissions in December of 2006 to:
Bureau of Alcohol, Tobacco, Firearms and Explosives
National Firearms Act Branch
P.O. Box 530298
Atlanta GA 30353-0298
You can direct your questions to:
Chief, National Firearms Act Branch
244 Needy Rd, Suite 1250
Martinsburg WV 25405
Now you wait for your Class 3 gun dealer to call you to get your NFA weapon. If you filed a Form 1 to create a weapon (such as a short barrel rifle - SBR), you can create it once the form is approved. Most people get the trust engraving done before the Form 1 is approved. It's easier to from a legal standpoint to ship a Title 1 weapon than a Title 2 weapon. It's not legal for you to leave a Title 2 weapon ANYWHERE you don't have complete control over it.
NFA weapons must be engraved by their creator. Here are the three scenarios you might want to know about, just so this is clear:
- If you purchased the NFA weapon via a manufacturer (brand new, like a Gemtech suppressor) at your local gun store, then its manufacturer’s name will already be engraved on it and you don’t need to engrave anything. These markings will be entered on Form 4, Line 4h, exactly as they appear on the weapon. Should you sell this item in the future, the party that buys it will not need to engrave anything on it either.
- If you purchased the NFA weapon via a private party transfer (face to face) at your local gun store than it should already be engraved (by either the original manufacturer or by the private party that made it) and you will register the already existing markings on your Form 4, Line 4h. Keep in mind if both parties are in the same state, you don't have to go through a dealer to do this, you can if you want, but it will add $50-$100 to the transaction cost for the dealer's fees. Ensure your Form 4 information regarding the weapon is exactly the same as the transferor's in regards to markings.
- If you make your own silencer, or modify an existing shot gun or rifle to become a short barrel model, then you must engrave your trust name on the weapon. You specify exactly what you will engrave on Form 1, Line 4h. This is your opportunity to shorten a lengthy trust name for engraving only purposes, unless you trust itself contains an shorter alternate name. Keep in mind, you can use common abbreviations (if you live in Phoenix, Arizona - you can engrave PHX, AZ instead). I've read the engraving must be a minimum of 1/16" in height, .003" deep, and in a conspicous location, not hidden by a grip, etc. If you sell this item in the future, then the purchasing party will register your markings on their Form 4, Line 4h.
Anytime you acquire or decide to sell an NFA weapon make sure to ammend your trust if this item was previously bequeathed to someone or will be bequeathed to someone. You do not recreate the entire Declaration of Trust, you make and print out an ammendement to the trust. Also update Schedule A, B or C as necesary, and create or destroy the Assignment of Property document as appropriate. Don't forget that Quicken WillMaker comes with a built in manual which should be able to answer any question you have.
Small Arms Review magazine published an article written by a trust and estate law attorney and how it would apply to purchasing NFA weapons. I believe this was published in their March 2007 issue. Unfortunately, Small Arms Review does not offer an online version of this article. Several forums host text only verisons of this article, and that is where I found my version that I am hosting right here.
Small Arms Review magazine published a questions and answers follow up to their 2007 aritcle by Bob Howell. I was contacted by Mr. Howell, and asked him if I could post a copy of his article. I am hosting this article here.
Arizona estate planning attorney's notes on trusts.
Florida estate planning attorney's notes on trusts. Also operates the website NFA Gun Trust Lawyer Blog. Just click on your state on the map, and chances are you can be put in touch with a lawyer in your state that specializes in weapons trusts.
The living trust FAQ at Nolo.com
If you'd like to read how others in various gun forums did this, check out the following threads:
- AR-15 forums discussion.
- AZ Shooting forums discussion. This article was inspired by the discussion in this thread, and with the help of a couple senior, and very knowledgeable members who have been through this process.
Here is a similar article, hosted at Officer.com, to mine. It is complete with pictures of the trust paperwork itself and various weapons with engravings on them.
To learn more about the National Firearms Act and Class 3 weapons and Special Occupational Taxpayers, check out this FAQ written by James O. Bardwell. If you go toward the bottom of the page you will see a list of all the states and what kind of NFA weapons they allow their residents to possess.