Three Myths About Wills & Guns

Sivia Law

Todd Sivia
Managing Partner, Sivia Business & Legal Services

I have written estate plans for a lot of gun owners and I find that they are surprised to learn that transferring a gun is a lot different than willing other forms of personal property. Therefore, I feel it is important to address a few of the myths surrounding the passing down of firearms.

Myth #1 – I do not need to include my guns in my Will. My family knows my wishes.

While your family may know what you want done with your guns, it isn’t always that simple. If you will a firearm to anyone without a valid FOID card (in Illinois), and that person takes possession, then they have committed a felony.

Or, if that person lives in another state and takes the firearms across state lines, it is now a federal felony—punishable with 5 years in prison and a $100,000 fine. That is probably not the “gift” you intended.

But these scenarios are easily preventable with proper planning.

Myth #2 – My guns are noted in my Will. That is enough.

Unfortunately, every item listed in your Will goes through the probate process. Probate is a public hearing where a judge determines who gets the items in your estate.

So not only will everyone know which guns you own and how much your collection is worth, but your beneficiaries will have to pay the transfer tax per firearm–and possibly estate taxes on top of that. Did I mention the lawyer fees?

Myth #3 – I created a Revocable Living Trust online to protect my guns from the probate process.

While a RLT certainly is a helpful estate planning tool, it is not, however, a good place to put your gun collection.

Why? The fact is that an online RLT can be downright dangerous, since they do not contain firearms-specific language. Some boilerplate RLTs have even proved invalid in court. So RLT downloaded from the internet or purchased from a gun shop might seem like a economical option, but it can cost your family more money in the long run.

The most effective method for protection is a gun trust. A gun trust is a special-purpose trust written to hold ONLY your firearm collection. You are trustee and beneficiary. You can appoint successor trustees, lifetime and remainder beneficiaries, and the trust can be amended or revoked at any time.

A gun trust ensures your guns will be handled lawfully after your death or incapacity, allows easier application and ownership of NFA items, permits ownership transfers without the $200 tax, and avoids probate and guardianship.

Most importantly, it protects your firearms from being declared illegal in the future.

Gun collecting isn’t like other hobbies. You’re not stashing away beanie babies in the attic. You’ve invested considerable amount of time and money into your guns. If you are interested in protecting your investment, contact me at 618-659-4499 or email me at info@sivialaw.com. Or, visit our website at www.sivialaw.com/estateplanning.

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Concealed Weapons Are Legal In Illinois. Is Your Business Ready?

Todd 2 C  By: Todd Sivia, Attorney-at-Law

Concealed weapons are now legal in IL.  Are you prepared?

On Jan 1, 2014, the Firearm Conceal Carry Act went into effect in the state of IL. Many people believe this law will have no impact on them. After all, if you do not want to carry a gun and most businesses prohibit firearms, how could this law possible affect you? Believe me, it will.

But, first, let me briefly define concealed verses unconcealed weapons.

A  “concealed” weapon is a loaded or unloaded handgun carried on or about a person completely or mostly concealed from view of the public or on or about a person within a vehicle.

Unconcealed weapons, by contrast, are loaded or unloaded handguns, or other firearms, that are in clear view of the public.

Ok, so how is this law going to affect you? Do you work outside your home? Do you like to go to the mall? Eat out? The person next to you could be carrying a concealed weapon.

It is true that there are many places where firearms will remain prohibited—schools, hospitals, government buildings, etc. Most businesses will likely post a sign like this [show Gun Sign] which announces that the building prohibits firearms in the building and/or surrounding area.

You may have already noticed that businesses have posted signs at every entrance. But a sign alone may not absolve a business or property owner from liability. What if a customer or client brings in a concealed weapon anyway? What if it goes off? What would you do in that situation? Business owners and managers need to create a detailed action plan—in writing—and update employee handbooks to address potential issues.

You also need to be aware that most public parking lots are considered “safe harbors.” So, even if you are in a parking lot with a posted sign, a licensed individual can still have a firearm in their glove box or trunk. That individual also has the right to have the firearm out of the vehicle in order to transport it to the trunk or glove box.

Think about these scenarios:  You have your CCL and you are taking your gun out of your trunk and moving it to your glove box. Then you see someone else in the parking lot getting mugged. What do you do? What can you do? Is it legal for you to draw your weapon in a lot with a posted sign?

Then answer? Maybe.

What if your employer permits concealed weapons and a co-worker decides to carry one. The gun accidently discharges. Who is at fault? Your boss? The owner of your building? Your coworker?

The answer? It could be all of them. It could be none of them.

Unfortunately, there are a lot questions yet to be answered concerning the FCCA. There will no doubt be test cases in the coming years that will serve to define precedents for the rest of us.

In the meantime, however, there are things you should do.

If you are a property or business owner, be sure you understand the law as it currently stands. Be aware that application of the law is likely to change throughout the year. You also need to review your lease or employee handbook to be certain that this issue is addressed in writing.

If you are considering applying for your CCL, it is important to have a plan of action in the event your weapon is discharged—either by accident or in an incident.

Remember—there are a lot of gray areas surrounding the FCCA.  If you decide to carry a concealed weapon, it is a good idea to talk to your attorney and create an action plan. The key is to know your rights and respect the rights of others.

 

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