This article was written by Thomas Oriet, Esq, LLM, EA, an Of-Counsel attorney who focuses on asset protection, estate planning, and agricultural law at the Law Offices of Casey D. Conklin.
Michigan is one of the few states to have pistol registrations,[1] making its laws more akin to Canada[2] than the majority of America. Interestingly, states that had no history of firearm registrations still find the need to enact state statutes declaring no state or local agency can register guns or keep a registry of concealed carry holders in the future.[3]
A decedent’s heirs must obtain a license within 30 days of taking possession of the inherited pistol in Michigan.[4] The Federal Bureau of Alcohol, Tobacco, Firearms and Explosives also has forms that must be filed and possibly approved before the transfer is allowed depending on the specific kind of firearm. In compliance with state and federal regulations, either the decedent’s estate can transfer or dispose of the firearm, or the gun can be placed in a trust.
A gun trust has multiple advantages. The trust can give instructions to prevent unlicensed family members from accidentally possessing or constructively possessing a pistol or Title II firearms, exposing the family members to a federal or state felony. The trust ensures the beneficiary is not a prohibited person from owning the gun. Despite having pistol registration, Michigan is liberal when it comes to owning various types of guns, magazine sizes, and silencers (suppressors). Therefore, a Michigan gun trust may be a great repository for non-Michigan family members interested in having guns or gun accessories when their home-state limits the sale of certain gun items. Of course, the non-Michigan resident cannot bring that item to their home-state where it’s illegal. Further, purchasing any guns or ammo appears time-sensitive given the 2020-2021 gun and ammo shortages.
Gun trusts are also a potential repository for guns exposed to “red flag laws.” The trust could prevent guns from being temporarily confiscated in the event the seizure of weapons was hyper-protective: i.e., the alert or intel justifying the gun seizure was a false positive. The gun would be transferred to another trustee who does not have a Protection Order against themselves. Michigan does not have red flag laws, but Michigan has Protective Orders, impacting a person’s ability to possess a firearm.[5] The Michigan legislature has considered many proposed laws that would impose red flag laws, meaning clients should not dismiss the possibility of Michigan enacting “red flag laws” or an equivalency given the law’s persistent debate at the legislature. The modern trend has been towards red flag laws, too.
The gun restrictions for gun owners also apply to gun trusts. The trustees, who can use the firearms in the trust, should be 21 years old to ensure that any of trustees can effectively conduct transactions with federally licensed gun dealers.[6] Additionally, the background check is still required for trustees with pistols in the trust regardless if the pistol is placed in a trust or outright transferred to the heir who applied for a pistol license.[7] No trustee or beneficiary can be a prohibited person under federal or state law.
A gun trust in Michigan is a legitimate option to administer guns throughout generations risking gun seizures or criminal penalties due to one heir’s licensing issues or Protective Orders. Likewise, the benefits can extend to long-rifles included in the trust, even though the estate transfer of long-rifles is less cumbersome. If a client’s guns fall into the residue of their estate, and the executor has the power to sell or convert into money any assets in the residue of the client’s estate, the executor may sell the guns they discover instead of gifting them to the residue beneficiaries.
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[** The information in this article is not legal advice and must only be used for educational purposes. Please consult with an attorney before making any decision. The author will not be update the article due to changes in the law.]
[1] MCL 28.422 [2] Firearms Act, SC 1995, c 39, ss 12.1, 83 (a pistol is a prohibited firearm requiring registration. See Criminal Code, RSC 1985, c C-46, s 84 for the definition). [3] See generally, S.D. Codified Laws 23-7-8.6; Fla Stat 790.335; 18 Pa. Cons. Stat. § 6111.4. [4] MCL 28.422(8) [5] MCL 28.422(3)(a) [6] MCL 28.422(3)(b). Federal law preempts Michigan law; thus, the cross-reference isn’t determinative. [7] MCL 28.426