Settling an Estate with Firearms - Part II

A Family Member dies with a Firearm Collection. Now what?

A look at the Kentucky Probate process and firearms collections.

Losing a family member or loved one can be stressful and confusing. Questions can arise on how to handle the estate assets, including a firearms collection. Firearm laws, both federal and state, can be tricky to navigate. These laws must be strictly followed to protect the family members from potentially serious criminal penalties, and Kentucky Probate rules need to be followed to ensure proper and legal distribution to the heirs.

It is important to talk with a Kentucky attorney who is knowledgeable in both probate administration and firearms laws to assist with:

1. Getting the estate into Probate Court.
2. Having the correct person appointed as the Personal Representative of the estate. 
3. Navigating the Personal Representative through the estate process and various firearms laws that need to be followed.

The Kentucky estate process: the first steps:

Open a Probate Estate in the Probate Court of the county where the decedent resided. The probate attorney will need to know:

1. Decedent’s date of birth, date of death, address, were they married, did they have a will or trust?
2. Who will petition to be the Personal Representative? This is usually the surviving spouse or a close family member. 
3. What assets did the decedent own, what debts did they owe, did they have a firearms collection, did they have any National Firearms Act “NFA” firearms (Machinegun, Short barreled rifle, Short barreled shotguns, Silencers, or AOW)?

With this information your attorney prepares the paperwork for filing the Probate case and the Court will appoint the Personal Representative of the estate. Generally, this will be the “Executor” if there is a will or “Administrator” if there is not a will. This Personal Representative should do nothing with the estate’s firearms until they have been appointed by the Probate Court. Even if a will names a person as the Executor they are not allowed to do anything with the property, including firearms, until appointed by the Probate Court. See KRS 395.020.

The Personal Representative will collect the assets of the estate and determines the estate’s debts. Within sixty days of appointment they need to file an Inventory with the Court which should include a detailed listing of the estate’s assets and an assigned value to each item. What to include on that Inventory, and the value to assign, can bring up many questions which your attorney can help with.

Usually a firearms collection is going to be considered a part of the estate assets and will need to be included on the Inventory. This may change if the deceased had a trust. A knowledgeable firearms dealer, known as an “FFL” can assist in this process by helping to appraise and value the items in the collection. They can also help to identify any NFA items such as registered transferable or dealer-sample Machineguns whose values can sometimes reach in the tens or hundreds of thousands of dollars.

Make sure that you have these items properly identified and valued by an FFL knowledgeable in this area. This process will also help to protect the Representative from potential criminal penalties should there be NFA items in the estate and the Representative unknowingly transfers these to an heir without following the federally required procedure. Even an unknowing and accidental violation of the NFA can result in serious felony criminal penalties.

WARNING - Possession of an NFA item without that item being lawfully registered to the possessor can be a serious felony offense, however federal law provides that the personal representative of an estate can possess and hold the item during the estate process once appointed by the Probate court.. Therefore, possession of an NFA item before being appointed can be a violation even if the possessor had intent to apply for Probate appointment. There are very specific procedures that need to be followed to ensure that the NFA firearms are properly possessed and transferred to the heirs. Make sure to discuss this with a knowledgeable Kentucky attorney to determine the best procedure to handle NFA firearms in a Kentucky estate.

In the next installment we will look further at handling firearms collections in Kentucky estates when there is no will. This is called an intestate estate. Each state has different laws for the estate process. The information in this article is intended to be a general and partial overview of the estate process in Kentucky. Every case is different so do not rely on this information as advice on how to proceed in your case or situation. If you have questions about this topic please call Kentucky attorney Andrew Gailor at 502-744-3825.  For firearm related questions contact Openrange 502-243-8282.

Andrew Gailor is a Kentucky attorney and a resident of Oldham County. He is a graduate of the University of Louisville School of Law with a Juris Doctorate in 2001. He is a member of Christ Church United Methodist Church, the Kentucky Bar Association, the Louisville Bar Association, the Federalist Society for Law and Public Policy Studies, Gun Owners of America, Silver Creek Conservation Club, the United States Practical Shooting Association, a lifetime member of the National Rifle Association, and a member at Openrange.

Andrew practices in the fields of Probate and Estate Administration, Personal Injury, Automobile Accidents, Firearms Laws, Family Law, and Criminal Defense.

Andrew K. Gailor, PLLC
730 W. Market St., Suite 100 Louisville, KY 40202 502-744-3825 [email protected] www.Attorney-Louisville.com