What Happens to Firearms Owned by an Estate? (w/Examples) + FAQs

When a person dies, their firearms immediately become a legal minefield for the family. The core problem is a direct conflict between estate law and gun law. Federal statute 18 U.S.C. § 922(g) makes it a felony for a “prohibited person”—such as someone with a past felony conviction—to possess a firearm, and this law makes no exception for an executor or trustee. This means a person named in a will to manage an estate can become an “instant criminal” the moment they are appointed if they are legally barred from owning guns, even if they never touch a single weapon. ¹

This isn’t a rare problem; an estimated 40% of American households have at least one firearm, meaning millions of executors will face this issue. The consequences of a mistake are not just financial—they can include felony charges, up to ten years in prison, and substantial fines.

This guide will break down this complex process into simple, actionable steps.

🔫 Solve the “Instant Criminal” Problem: Learn how to identify if an executor or heir is a “prohibited person” and what to do to avoid committing an accidental felony.
📜 Master the Paperwork Maze: Get a line-by-line walkthrough of the critical ATF forms needed to legally transfer firearms, avoiding the common errors that cause months of delays.
🗺️ Navigate the State Law Patchwork: Understand why federal rules are only half the story and how to handle transfers between states with wildly different laws, like from Texas to California.
🔐 Secure the Assets, Secure Yourself: Discover the immediate steps you must take to safely secure, inventory, and appraise estate firearms to protect them from theft and protect yourself from liability.
💡 Plan Ahead with Gun Trusts: Learn how proactive planning with a specialized trust can bypass the entire probate nightmare, saving your family time, money, and legal risk.

The First 24 Hours: Your Immediate Duties and a Critical Choice

When you discover firearms in an estate, your first actions are the most important. They set the stage for a legally compliant process or a path toward liability. You must immediately secure the weapons against theft and unauthorized access, especially if the home is now empty. ³

The Department of Justice recommends a simple but strict protocol: Unload it, Lock it, Store it. ⁵ Every firearm must be unloaded. The unloaded guns should then be placed in a locked container like a gun safe or vault. Ammunition must be stored separately in its own locked container. ⁴

While securing the firearms, you must create a perfect inventory. This isn’t just a list; it’s a legal record for the court and for appraisers. For every single firearm, you must write down its Make, Model, Caliber or Gauge, and Serial Number. ⁴

If you can’t safely store the guns or are legally barred from touching them, you have two primary options. The best choice is to contact a local gun dealer with a Federal Firearms License (FFL). An FFL can legally take possession of the firearms and store them securely and with insurance while the estate is being settled. ⁵ In some areas, local police may also offer temporary storage. ⁴

Are You Legally Allowed to Touch These Guns? The “Prohibited Person” Test

This is the most important question you must answer before you do anything else. Federal law, under 18 U.S.C. § 922(g), defines a “prohibited person” who cannot legally possess a firearm under any circumstances. There is no exception for an executor or trustee managing an estate. ³

You are a prohibited person if you:

Have been convicted of a crime punishable by more than one year in prison (a felony). ⁹
Are a fugitive from justice. ⁹
Are an unlawful user of, or are addicted to, any controlled substance. ⁹
Have been declared mentally defective or have been committed to a mental institution. ⁹
Are in the U.S. illegally. ⁹
Have a dishonorable discharge from the military. ⁹
Have renounced your U.S. citizenship. ⁹
Are under a court order restraining you from harassing or stalking a partner or child. ⁹
Have been convicted of a misdemeanor crime of domestic violence. ⁹

Many states have even more restrictions. California, for example, adds people convicted of certain violent misdemeanors to its prohibited list. ¹¹ If you are a prohibited person and you are appointed as executor, you are in “constructive possession” of the firearms the moment you accept the role. Constructive possession means you have the legal power and intent to control the assets, even if you haven’t physically touched them. This act alone is a felony. ¹

Your Situation	The Legal Consequence
You are named executor in a will and have a prior felony conviction. You accept the appointment from the court.	You have committed a new felony. You are in “constructive possession” of the estate’s firearms, which is illegal for a prohibited person. ¹
You are a prohibited person and you physically move the firearms from the home to a secure storage unit.	You have committed a felony. You are in “actual possession” of firearms, which is illegal. ²

If you are, or even think you might be, a prohibited person, you must not accept the role of executor. If you have already been appointed, you must immediately contact an estate attorney. You will need to have a court appoint a co-executor or a special administrator just to handle the firearms. ⁴

What Kind of Gun Is It? Why Classification Is Everything

The next step is to understand exactly what type of firearms you are dealing with. The legal path for transferring a gun depends entirely on its classification under federal law. Getting this wrong can lead to using the wrong forms, breaking the law, and turning a valuable asset into a legal liability. ²

There are two main categories you must know. The first is for standard firearms like hunting rifles, shotguns, and common handguns. These are called GCA (Title I) firearms, regulated by the Gun Control Act of 1968. ¹⁵

The second category is for heavily restricted items like machine guns, silencers (suppressors), and short-barreled rifles or shotguns. These are called NFA (Title II) firearms, regulated by the much stricter National Firearms Act of 1934. ⁹ These items must be registered with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) in a federal database. ¹⁸

Firearm Category	Common Examples	How to Identify It	Governing Law
GCA (Title I)	Most rifles, shotguns, pistols, revolvers.	Looks like a standard firearm.	Gun Control Act of 1968
NFA (Title II)	Machine guns, silencers, short-barreled rifles/shotguns.	Has a very short barrel (under 16″ for rifles, 18″ for shotguns), can fire fully automatically, or is a silencer. Look for “tax stamp” paperwork.	National Firearms Act of 1934
Antique	Guns made in or before 1898.	Has markings with an old date; may use an old firing system like a flintlock.	Generally exempt from GCA/NFA.
Curio & Relic (C&R)	Guns over 50 years old or on a special ATF list.	Must be on the official ATF C&R list.	Gun Control Act of 1968

The Federal Rules: Navigating the ATF Transfer Process

Federal law sets the minimum rules for every firearm transfer from an estate. The process is split into two very different paths: a highly technical and rigid process for NFA firearms, and a more straightforward one for regular GCA firearms.

The Ultimate Red Tape: Transferring NFA (Title II) Firearms

Transferring an NFA item like a machine gun or silencer is controlled completely by the ATF. Any mistake can result in the firearm being seized and the executor facing felony charges. A critical point of confusion is “safekeeping.” You cannot simply hand an NFA firearm to a gun dealer for storage without prior ATF approval. That act itself is considered an illegal transfer and is a felony. ¹⁹

Scenario 1: Transferring to a Legal Heir (Tax-Free) with ATF Form 5

When a lawful heir inherits an NFA item, the transfer is tax-free. ¹⁵ The only legal way to do this is by filing an ATF Form 5 (5320.5), Application for Tax Exempt Transfer and Registration of Firearm. ²³ This form must be approved by the ATF before the heir can take possession.

A Line-by-Line Guide to Filling Out ATF Form 5

Filling out this form perfectly is not optional. The information must be exact.

Box 1: Check the box that says the firearm is being transferred to a lawful heir. ²² This tells the ATF it is a tax-exempt inheritance.
Box 2a & 2b: Enter the full name and address of the person inheriting the firearm (the heir). If the heir is a trust, use the trust’s full legal name. Include the county. ²²
Box 3a: Enter the name, address, and date of death of the person who passed away. ²²
Boxes 3b-3e: Enter your information as the executor of the estate. ²²
Boxes 4a-4i: This is the description of the firearm. It must match the government’s records exactly. You can find this information on the deceased’s original paperwork, often an approved “Form 4.” ²² Any mismatch will cause a rejection.
Boxes 11-13 (Signature): You, the executor, sign here. For your title, write “Executor” or “Administrator.” ²³
Transferee Questions (Page 3): The heir must answer a series of yes/no questions confirming they are not a “prohibited person.” They also sign and date this section. ²⁰

The Required Document Packet

You don’t just mail the form. You must include a packet of legal documents to prove the transfer is legitimate.

Proof of Your Authority: A copy of the court document naming you as executor (e.g., Letters Testamentary). ²³
Proof of Death: A copy of the death certificate. ¹⁵
Proof of Inheritance: A copy of the will or trust that names the heir as the beneficiary of the firearm. ¹⁵
For the Heir: The heir must submit two FBI FD-258 fingerprint cards and one 2×2-inch passport-style photo. ¹⁹
CLEO Notification: You must send a copy of the completed application to the Chief Law Enforcement Officer (CLEO), like the local sheriff, where the heir lives. You only have to notify them; you do not need their permission. ¹³

The NFA firearm must stay in the executor’s legal possession until the stamped, approved Form 5 is returned by the ATF. This process can take many months. Only then can the heir legally touch the firearm. ²⁰

Scenario 2: Selling an NFA Firearm to a Third Party with ATF Form 4

If the estate sells an NFA firearm to someone who is not a legal heir, it is a taxable transfer. You must use ATF Form 4 (5320.4), Application for Tax Paid Transfer and Registration of Firearm. ¹⁵ You, as the executor, sign as the seller on behalf of the estate and must pay the $200 transfer tax. ²³

The Worst-Case Scenario: Finding an Unregistered NFA Firearm

If you find a machine gun, silencer, or short-barreled rifle and there is no paperwork showing it is registered with the ATF, you have found illegal contraband. ¹⁵ It is a felony to possess it. It cannot be registered by the estate, and it cannot be inherited. ¹

Your only legal option is to contact the nearest ATF office immediately. Do not move or transport the item. The ATF will give you instructions on how to surrender it safely and legally. ²⁷

Your Action	The Legal Consequence
You find a short-barreled rifle with no paperwork and try to sell it to a gun dealer.	You have committed a felony by possessing and attempting to transfer an unregistered NFA firearm. The firearm will be seized, and you face fines and prison time. ¹
You find an unregistered silencer and immediately call the local ATF field office for instructions.	You have followed the only legal procedure. The ATF will arrange to take possession of the contraband, and you and the estate are protected from liability. ¹⁵

The Simpler Path: Transferring Regular GCA (Title I) Firearms

Transferring standard rifles, shotguns, and handguns is less complicated than NFA transfers, but rules must still be followed.

Transfers Within the Same State (Intrastate)

Under federal law, an executor can directly transfer a firearm to an heir who lives in the same state without involving a licensed dealer (FFL). ²⁸ However, this is a major trap. Many states, like Colorado and Oregon, have their own “universal background check” laws that require nearly all transfers, including inheritances, to go through an FFL for a background check. ²⁹ State law always overrules the more permissive federal allowance.

Transfers Across State Lines (Interstate)

Federal law generally forbids direct firearm transfers between residents of different states. ¹⁵ The standard legal method is for the executor to ship the firearm to an FFL in the heir’s home state. The heir then goes to that dealer, fills out the paperwork (ATF Form 4473), and passes a background check to receive the gun. ¹⁵

There is a specific federal exception for inheritance. 18 U.S.C. § 922(a)(5)(A) allows a firearm to be directly given to an out-of-state heir as part of a bequest. ¹⁸ This means, federally, an heir from Illinois could travel to Texas, take possession of a rifle, and drive it home.

This exception is the single biggest legal trap in firearm inheritance. While federally permissible, it does not override the laws of the heir’s home state. ²⁶ For example, California law requires almost all firearms coming into the state to be processed through a California FFL. ⁴ If that heir from Texas drove the rifle directly to their home in Los Angeles, they would be violating California state law the moment they crossed the border.

Your Action	The Legal Consequence
You are the executor in Arizona. You ship your brother’s inherited handgun to an FFL dealer near his home in New Jersey.	You have followed the correct and safest legal procedure. Your brother will complete the required New Jersey paperwork and background check at the dealer. ²⁹
You are the executor in Arizona. Your brother from New Jersey visits, and you hand him the inherited handgun, citing the federal inheritance exception. He drives it home.	Your brother has likely committed a felony under New Jersey state law, which requires handgun transfers to go through an FFL and requires a state-issued permit to purchase. ²⁹

Because of the risk of violating state law, the safest and only recommended practice for all interstate transfers is to ship the firearm from an FFL in the estate’s state to an FFL in the heir’s home state.

The State Law Maze: A Patchwork of Contradictory Rules

Federal law is only the starting point. Each state has its own set of gun laws, and they vary wildly. An executor in a gun-friendly state like Texas is still legally bound by the laws of the heir’s restrictive state, like New York. ²⁹ You must satisfy the laws of the decedent’s state, the heir’s state, and the federal government.

How State Regulations Complicate Everything

States add extra layers of rules that you must follow.

Universal Background Checks: States like Washington and Delaware require most private transfers, including some inheritances, to be processed by an FFL for a background check. ²⁹
Firearm Registration: Jurisdictions like California, Hawaii, and New York require the new owner of an inherited firearm to register it with the state. ²⁹
Permits to Own: In states like Illinois and Massachusetts, an heir cannot even take possession of a gun without first getting a state-issued permit, like a Firearm Owner’s Identification (FOID) card. ²⁹
“Assault Weapon” Bans: Many states ban certain types of semi-automatic firearms. Even if the deceased legally owned such a firearm, an heir in that same state often cannot inherit it. The executor must have it sold, moved out of state, or surrendered to police. ³³

State Law Examples: From California to Texas

A look at a few states shows how different the process can be.

California: The High-Restriction Model

California has some of the strictest gun laws in the country. While an inheritance is considered an “Operation of Law” transfer and can be exempt from going through a dealer, a rigid process must be followed. 33

Heir Requirements: The heir must be at least 18, not be a prohibited person, and have a valid California Firearm Safety Certificate (FSC) before taking possession. ³³
Reporting: Within 30 days of receiving the firearm, the heir must file a special report with the California Department of Justice and pay a $19 fee. ³³
Banned Firearms: So-called “assault weapons” as defined by California law cannot be inherited by a California resident. The executor has only 90 days to get the firearm out of the state, sell it to a special FFL, destroy it, or surrender it. ³³

Texas: The Low-Restriction Model

Texas law is far more permissive. The state does not require background checks for private firearm transfers between residents, including inheritances. 7 Even so, the executor still has a legal duty to act responsibly. This includes taking reasonable steps to ensure the heir is not a prohibited person under federal law. 7 The safest action, even in Texas, is to use an FFL to run a background check to create a legal paper trail and protect the executor from liability. 3

Washington: The Hybrid Model

Washington State treats handguns and long guns differently, showing a hybrid approach. 36

Pistols: An inherited pistol must be transferred through a licensed dealer, who will conduct a background check.
Rifles and Shotguns: State law allows inherited long guns to be transferred directly from the executor to the heir. However, legal experts still advise using an FFL to be safe. ³⁶

The Smartest Move: How Gun Trusts Avoid the Entire Mess

The legal risks and complexities of transferring firearms through probate have led many gun owners to use a powerful estate planning tool: the gun trust. A gun trust is a special type of living trust created specifically to own firearms. ¹⁶

Deconstructing the Gun Trust

A gun trust works by changing the owner of the firearms from a person to a legal entity—the trust itself.

Settlor: The person who creates the trust and puts their firearms into it. ³⁸
Trustee: The person (or people) who manages the trust. The settlor is usually the first trustee. A key feature is that any trustee can legally possess and use the trust’s firearms. ¹⁶
Successor Trustee: The person who takes over managing the trust when the settlor dies or becomes incapacitated. ¹⁴
Beneficiaries: The people who will inherit the firearms from the trust. ³⁸

Why a Gun Trust Is the Superior Option

Using a gun trust provides massive advantages over a traditional will.

Pros	Cons
Avoids Probate Entirely: Firearms in a trust are not part of the public probate estate, saving time, money, and privacy. ¹⁶	Upfront Cost and Complexity: Requires hiring a knowledgeable attorney to draft it correctly, which costs more than a simple will.
Allows Shared Use: Multiple co-trustees can legally possess and use NFA items, which is illegal for individually owned items. ⁴¹	Potential for Mistakes: Using a cheap online template can lead to an invalid trust, creating the very legal problems you tried to avoid. ⁴³
Solves the “Prohibited Person” Problem: The gun owner chooses a qualified, knowledgeable successor trustee ahead of time, preventing an unprepared or illegal executor from taking charge. ¹⁴	Administrative Burden: The trust must be properly managed, and firearms must be formally titled in the trust’s name.
Protects Against Incapacity: If the owner becomes incapacitated and thus a “prohibited person,” a co-trustee can legally take control of the firearms, preventing confiscation. ¹⁴	Not a Legal Loophole: All trustees and beneficiaries must still be legally eligible to possess firearms. The trust is a management tool, not a way to bypass gun laws.
Streamlines NFA Transfers: The successor trustee can easily transfer NFA items to beneficiaries using the tax-free ATF Form 5. ²²	State Law Variations: The trust must be drafted to comply with both federal law and the specific laws of your state.

When the settlor dies, the successor trustee steps in immediately. They follow the private instructions in the trust to distribute the firearms to the named beneficiaries. The entire process happens outside of court, making it faster, cheaper, and safer for everyone involved. ¹⁴

Practical Matters: Appraisals, Costs, and Family Fights

Beyond the legal rules, an executor must handle the financial and emotional side of inheriting firearms.

What Are They Worth? Getting a Professional Appraisal

You should never try to guess the value of a firearm. A small difference in condition or rarity can change the value from hundreds to tens of thousands of dollars. ³ You need a professional appraisal for estate taxes, to ensure heirs receive fair value, and to set a price if selling. ⁴⁶

Appraisers use different valuation methods:

Fair Market Value: The price a buyer would pay on the open market. This is a gross value used for IRS and estate tax purposes. ⁴⁶
Marketable Cash Value: The net amount the estate will actually receive after commissions and fees are paid. This is often used to divide assets among heirs. ⁴⁶
Replacement Value: The cost to replace the item. This is used for insurance. ⁴⁶

What to Do with Unwanted Firearms

If heirs don’t want the guns or can’t legally own them, the executor has a few options.

Sell Through an FFL: The safest way to sell is through a licensed dealer. The FFL can sell the guns on consignment, handling all the paperwork and background checks for the buyers. This protects the executor from liability. ⁴⁹
Surrender to Police: If the guns have little value, they can be surrendered to the local police department. You should call first to ask about their specific procedure. ³

Mistakes to Avoid When Handling Estate Firearms

Don’t Assume You’re Legal: Never take possession of firearms until you have confirmed you are not a “prohibited person.” The consequences are severe.
Don’t Hand Guns to Heirs Directly: Do not give a firearm to a beneficiary without verifying their eligibility and following all state and federal transfer laws, preferably through an FFL. A verbal promise from the deceased like “Grandpa said this was mine” has no legal weight. ³²
Don’t Cross State Lines Casually: Never transport a firearm across state lines for an heir without consulting an attorney. The federal exception for inheritance is a trap that is often closed by state law.
Don’t Ignore NFA Rules: If you see a silencer, a short-barreled rifle, or a machine gun, STOP. These are NFA items with their own strict set of rules. Assume nothing and contact an NFA-savvy lawyer.
Don’t Guess the Value: Get a professional appraisal. You have a legal duty to the estate to know the value of its assets.

The Human Factor: Why Guns Cause Family Fights

Firearms are often more than just property; they are symbols of family history and connection. ⁵³ A grandfather’s hunting rifle can hold immense sentimental value, and these emotions often fuel bitter family disputes. ⁵⁵

Conflicts explode when the deceased’s wishes were not written down. A simple verbal promise can lead to two family members believing they are the rightful owner of the same gun. ⁵² These fights are rarely about money; they are about feeling recognized and loved. ²⁷ The best way to prevent this is for the gun owner to clearly state in a will or trust exactly who gets which firearm. ³²

Frequently Asked Questions (FAQs)

1. What is the very first thing I should do if I find guns in an estate?

Yes. Immediately ensure they are unloaded and secured in a locked container, with ammunition stored separately. If you cannot do this legally or safely, contact a licensed gun dealer (FFL) for temporary storage. 3

2. Can I move the guns to my house for safekeeping?

No. Not unless you are the court-appointed executor and are legally allowed to own firearms yourself. Transporting them must also comply with all state and local laws, such as using a locked container. 1

3. What if I’m the executor but I have a felony conviction?

No. You cannot legally possess the firearms. This is a felony. You must hire an attorney immediately to arrange for an FFL to take custody or for the court to appoint someone else to handle them. 3

4. How do I know if a gun is a highly regulated NFA firearm?

Yes. Look for features like a silencer, a rifle barrel shorter than 16 inches, or the ability to fire fully automatically. Also, look for any paperwork mentioning an “ATF Form 4” or a “tax stamp.” 9

5. What if I find a machine gun with no registration paperwork?

No. Do not touch it. An unregistered NFA firearm is illegal contraband. You must contact your local ATF office immediately and arrange to surrender it. They will provide safe and legal instructions. 15

6. Does an heir have to pay a tax to inherit a silencer or other NFA item?

No. The transfer of a registered NFA firearm to a lawful heir is tax-exempt. The executor must use the tax-free ATF Form 5 for the transfer. 15

7. Can I just drive an inherited gun home to another state?

No. While federal law has an exception for inheritance, your home state’s laws may require the transfer to go through a licensed dealer (FFL). The safest and only recommended method is to use an FFL. 26

8. What happens if the heir named in the will can’t legally own guns?

No. The transfer cannot happen. The firearm remains an estate asset to be given to an alternate beneficiary or sold, with the money going to the intended heir. Knowingly transferring a gun to a prohibited person is a felony. 2

9. Does an heir need a special permit before they can inherit a gun?

Yes. It depends on their state. Some states, like Illinois and New Jersey, require the heir to obtain a state-issued license before they can legally take possession of any firearm. 29

10. Is a gun trust a way to get around gun laws?

No. A gun trust is a legal tool for managing firearms and avoiding probate. All trustees and beneficiaries named in the trust must still be legally allowed to possess firearms under federal and state law.