In this episode, tax attorney Toby Mathis, Esq., welcomes Tom Chittum, former ATF Deputy Director and firearms law expert, to discuss the critical intersection of firearms ownership and estate planning. They explore what families need to know when inheriting firearms, from identifying contraband weapons to navigating complex federal regulations. Tom explains the biggest mistakes executors make, including informal transfers and failing to identify whether firearms like machine guns are properly registered under the National Firearms Act of 1934. The conversation covers the distinction between regular firearms and NFA weapons (machine guns, silencers, short-barreled shotguns), the severe criminal penalties for unlawful possession, and the importance of working with federal firearms licensees for transfers. Tom provides practical guidance on securing firearms, maintaining proper inventories, using gun trusts to simplify inheritance, and understanding both actual and constructive possession. With insights from decades of ATF experience, Tom offers actionable steps gun owners can take today to protect their families from legal headaches and ensure valuable firearms or family heirlooms don’t become government-destroyed contraband due to simple mistakes.
Highlights/Topics:
- 0:00 Why Listen to Tom Chittum
- 2:58 Biggest Mistakes with Firearm Inheritance
- 6:20 History of Federal Gun Laws
- 8:36 Legal Possession and Registration Requirements
- 11:30 Prohibited Persons and Transfer Restrictions
- 12:59 How to Transfer Firearms to Heirs
- 15:30 NFA Firearms and Special Requirements
- 18:35 Gun Trusts and Estate Planning
- 22:29 Executor Rights and Possession
- 24:31 Securing Firearms in Estates
- 25:51 Handling Contraband Firearms
- 28:50 Weekend Action Steps for Gun Owners
- 31:00 Outro
- Share this with business owners you know
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Full Episode Transcript:
Toby: Hey guys, welcome back. My name’s Toby Mathis and today we’re going to be diving into guns and estate planning, and really what every family needs to know. Let’s just say that somebody passes away, you go into their garage, and you find out that they had a collection of 100 firearms. What the heck do you do? Or Uncle Ed passes away, you go into a safe, and there’s a grenade, two machine guns, and a few other things you’ve never seen before. What are your obligations? What can get you in trouble? And how do you avoid that?
I’m bringing in a great expert today, Tom Chitham from Chitham Law and a former ATF guy. Actually, let you do your background. First off, thank you for attending today and coming in and educating us, Tom.
Tom: Thanks for having me, Toby. I’ve been looking forward to this because I spend a lot of my time talking about guns and crime, but the reality is the vast majority of guns in America are lawfully owned and possessed, and they raise some really interesting issues in estate planning. So thanks for having me.
Toby: Give them a 30-second spiel on why they should listen to you, why you’re the expert in the room.
Tom: Well, I started out as an ATF agent, a plain old agent working cases in the streets, but worked my way up through the ranks of the agency. I retired from the ATF in 2022 as the Acting Deputy Director or the number two in charge.
I am an attorney, though at ATF I worked as an agent, not an attorney. I am an adjunct law professor. I teach firearms law in the Second Amendment at UNLV and host ATF. I went to work for a Silicon Valley public safety tech company, formerly known as ShotSpotter now SoundThinking, where I was the Senior Vice-President of Forensic Services. I oversaw a team of attorneys and expert witnesses who helped the customers of the company use SoundThinking’s tools as it carried out their public safety missions.
Toby: And that’s the one where you can tell where a firearm was discharged by the acoustics, right?
Tom: That’s right. SoundThinking is the company name, ShotSpotter is the product name. It uses sound to locate where gunfire occurs, so they can timely notify police, so they can respond/render aid to gunshot wound victims, collect important ballistic evidence, arrest offenders. It’s incredible technology and a really great chapter, too. But I left the company on very good terms. They continue to be a client of mine because now I am a private attorney.
Toby: Well, let’s use some of that knowledge because those two scenarios I gave you, you walk in and you here’s a bunch of guns. I didn’t know that my uncle had this stuff in his safe, or I didn’t realize that somebody was a collector and had this type of spy…, or better yet you knew and now you’re having to deal with it because they passed away. What’s the biggest mistake that you see that gets people into trouble? Because they could get into serious trouble by possessing some of this stuff, right?
Tom: That’s right. Like (say) jewelry and tools, firearms can represent a lot of value to an estate. Unlike jewelry and tools, though, firearms are subject to a lot of serious laws that regulate everything from whether or not a firearm in and of itself is lawful to who can possess it and how they can be transferred. There’s really a lot of regulation that controls firearms, and many of those rules are backed by pretty severe criminal penalties. So if someone runs afoul, they can find themselves in a really difficult position.
Toby: Is it true that, let’s just use uncle Ed and he’s got a couple of machine guns. Just by possessing those you could be committing a felony?
Tom: Well, yes, possibly so. I’m a bit of a history buff and I find the history of gun law incredibly fascinating. If you’ll indulge me for 30 seconds, I’ll give you some background on the major gun laws in America.
Gun law in the United States has basically tracked some major significant historical events. The first major federal gun law was passed shortly after prohibition. You’ll remember Al Capone and the gangsters. The National Firearms Act of 1934, regulated so-called gangster guns. It’s not a legal term, it’s a layman’s term, but it gives you an idea of what that law addresses.
It regulates firearms like machine guns, silencers. short barrelled shotguns, short barreled rifles, and a couple of other categories. The law did not ban those firearms, but rather it subjected them to a registration requirement and a tax payment. So the NFA is still the law today that regulates the machine gun, silencers, and the like.
Then in the 1960s we had civil unrest and a couple of high profile political assassinations—JFK, Martin Luther King Jr., Bobby Kennedy—and in the wake of those assassinations, Congress passed the second major federal gun law, the Gun Control Act of 1968.
Unlike the NFA, which dealt with a small subset of types of firearms, the GCA applies broadly, so the guns that you would think of as regular guns like pistols, revolvers, shotguns, and rifles. It also imposes some requirements on people who engage in the business of selling firearms. It imposed a lot of interstate controls. Those two laws written together with some others that have come along are the major controlling regulations for firearms today.
Toby: So how do these things interact? Again, let’s go back to when uncle Ed passes away and you come across these things that you don’t know what they are. What should you do? What are the steps?
Tom: The first challenge, the first thing I would say when a person comes across firearms, you have to think of two things. First is safety. It is absolutely crucial that you put that ahead of all other considerations.
There are some basic rules of firearm safety. Treat every firearm as if it is loaded, even if you think it’s not. Don’t point a firearm at anything you’re not willing to destroy. Keep your finger off the trigger until you’re ready to shoot and always know what your target is.
If a person comes across firearms and isn’t familiar with them, they should be very careful about trying to touch them. You should engage someone who understands firearms operations and safety and can make sure that they’re all rendered safe.
The next thing is you have to identify what types of firearms they are. I mentioned the law treats different types of firearms differently. You’re talking about your uncle’s machine gun. Well, machine guns aren’t necessarily illegal in and of themselves, but they are illegal if they’re not registered. They have to be registered to a specific person or to a trust as we’ll talk about.
If a person possesses a machine gun that is not registered to him or her, then it’s a federal felony subject to 10 years in prison, a $250,000 fine. It’s really important to identify, is this machine gun registered? If it isn’t, it’s an illegal machine gun. It’s contraband.
It’s the same as if you opened up uncle Ed’s safe and found a kilo of cocaine. You would not say, oh, this is great. Who should I transfer this to to get the value of his kilo of coke? Instead, you may have a contraband firearm. Or it may be completely lawful, but then you have to handle possession and transfer of it carefully.
Toby: I’ll use the example. Full disclosure, I’ve worked with Tom on an estate because we had a couple of machine guns. Actually we lived it. It wasn’t uncle Ed, but it was a friend and I’m his executor.
We came across firearms that I believed could be contraband, and we don’t know because we didn’t have the licensing. So I had to possess them because I was the executor. The kids possessing it was a felony. An heir can’t just walk around and say, hey, I inherited a MAC-10, woo hoo. You don’t get to do that. You got to see, is it legal? Can you even possess it? And in this particular case, I think it was machine guns that were all made before 1984, and they have to have a valid license.
Then we went to the ATF, requested the licensing, gave them the serial numbers, and we were able to get possession of those. But as the executor, I had to take possession. I had to secure those firearms. Somebody else possessing it would be illegal, correct?
Tom: That is correct. Possessing a machine gun that is not registered to you is a federal crime. In 1934, Congress required that they be registered and tax paid, and in 1986, Congress banned all new machine guns for private ownership. Any machine gun that is lawfully possessed by a private citizen today is one that was properly registered prior to 1986.
The one law that machine guns don’t violate is the law of supply and demand. As more and more time goes by and fewer and fewer lawful machine guns are available for transfers that go permanently off the market, the value of machine guns has gone up and up. To purchase a lawful machine gun today, maybe tens of thousands of dollars, maybe more, so that represents real value to an estate. But as you said, it must have been registered, and that would be evidenced through paperwork from the ATF.
Toby: I’ll give an example. Let’s say that you come across some firearms and maybe it’s your father that passes away or somebody that you know passes away, that could be your mother for all we know. It’s just somebody’s passed away and here’s some firearms.
Now you’re like, oh my gosh, this one looks like a short barrel shotgun. This one looks like a machine gun. Do you go to the ATF? Do you secure them? Do you do an inventory, keep all the social security numbers and then check? What are your steps if that’s you, so that you don’t unintentionally get in trouble?
By the way, you never can just hand it off to, hey, he would’ve left it to his kids, therefore I’m going to hand all these guns to his kids. Never do that, right?
Tom: That’s right. You asked what is one of the biggest mistakes a person can make, and it is informal transfers. Simply handing off a gun because you think that’s who it should go to without verifying whether or not the person can lawfully possess it.
The Gun Control Act of 1968 named several categories of people who are prohibited from possessing firearms. The most well-known are convicted felons, but there are many other categories—people subject to domestic violence, restraining orders, or convicted of misdemeanor crimes of domestic violence, unlawful drug users and other categories.
Transferring a firearm to a person who is in one of those categories could subject the person to punishment for having it, but to transferrer to punishment for transferring it. It’s very important that you proceed with caution when you’re identifying who can receive firearms and how they get transferred.
Toby: And then let’s just say you find out, okay, I have a few regular old guns, just a little nine millimeter Glock. How would I transfer that to an heir? Let’s just say that it’s set out here, there’s a living trust or a will and it says, I want my son, Toby, to get this firearm. What are the steps to actually make that transfer?
Tom: We talked about the federal laws that regulate guns. There are some others too, but it’s also important to understand that there are state laws that may apply to firearms. In some places all firearms transfers have to go through a background check.
The Gun Control Act regulates federal firearms licensees or what we call FFLs, gun stores. These are people that are licensed and they’re obligated to keep certain records. They are aware background checks occur. So a safe way to transfer a firearm is through an FFL that can handle that transfer to run the background check on the recipient of the firearm. It depends on who the firearm is being transferred to and where.
It may be perfectly legal to simply give the gun to an heir if you don’t have any reason to believe that person is prohibited. If state law doesn’t require that transfers go through a background check or an FFL, there’s nothing necessarily illegal about giving a gun to a person.
But if you’re giving a gun to a person (say) who is not a resident of that state, then that could break the law. It’s usually a good practice to involve a federal firearms licensee in the transfer. The other benefit to that is too, it creates a bit of a paper trail as they fill out the forms.
You asked before who you should call. You should call someone knowledgeable in handling firearms safely. You asked the question about whether or not you should call the ATF. Although my colleagues would hate to hear me say this, the ATF is not the first place I would call. My experience is that the ATF does a great job with an incredibly difficult mission, but they’re there to look out for the interests of public safety and the law. It’s probably a good idea to consult private legal counsel before you involve the government in issues of a state administration.
Toby: Let’s go to the, hey, we have something that is definitely a machine gun. We have the license. Can I just transfer that directly to an heir or now I need to do a federal form, right?
Tom: That’s right. While it may be lawful to say, give a revolver to an heir who is not prohibited and who is a resident of the state or the estate is being administrated, transferring an NFA firearm is a whole other ball of wax.
NFA transfers are highly regulated. It involves submitting paperwork to the ATF to pay the tax, and ATF will then transfer it to the new recipient. Only after that transfer has occurred on the paperwork can the firearm physically be transferred.
For instance, as the executor you open up the safe and you find what you believe is a lawful machine gun, let’s say you find the paperwork with it. You couldn’t simply go down to your local gun store and say, here, please sell this machine gun on consignment for me, because that would be a transfer to them. It is really very important, especially with NFA firearms, that a person proceed cautiously and with a diligent attention to the law.
Toby: You could sell it to somebody, though. You could sell it potentially to the gun store, but you’re going to have to document that with the proper paperwork to get it out of the estate, correct?
Tom: That’s right. Look, we’ve been talking about firearms being of value to the estate. That’s true, especially with pre-1986 machine guns. They can be worth tens of thousands of dollars to the estate. But a lot of firearms are family heirlooms. They have sentimental value, you want to keep them in the family.
Say an NFA firearm identified in a will can be transferred a tax-exempt to the beneficiary where you still have to fill out the paperwork, but there’s no cost to the transfer. But as you say, you could also just sell it.
The executor could say, I need to realize value for the estate. You could use NFFL to broker a sale. They may buy it themselves or they may find a buyer for you, and then you follow through with the paperwork transferring the NFA weapon to either the FFL or to the new buyer. Once ATF approves it, then you physically transfer it. But in the meantime, the executor is the person that has to maintain custody of that weapon.
Toby: It sounds like the landmines are transferring guns that can’t be transferred to particular individuals, transferring across state lines, transferring NFA machine guns for lack of a better word, or in silencers, suppressors.
Let’s talk about a way around some of this. If I am the owner of the firearms and I know that I’m going to leave a bit of a headache to my heirs, maybe I want to take care of it ahead of time. Is that when you start using things like gun trust and you transfer it there beforehand? Is that something that folks would do?
Tom: Yeah. Benjamin Franklin said, an ounce of prevention is worth a pound of cure. Planning ahead really does make a difference.
You talk about trust, but let me offer one other piece of advice first, and that is keep a good inventory of your firearms, identifying them. There is a free ATF form, a personal firearms record. It’s a publication 3312.8, and it lays out all the information that a person should record to accurately identify the firearm.
Record those firearms, keep that record somewhere safe. It can serve you in life if you are the victim of theft. You can accurately report the firearms to the police so they can be entered into NCIC, into the insurance so that you can get your money back. You may even find that the firearm is recovered one day and returned to you.
But that inventory will also help the administrator know what firearms they have, accurately assess their value. It would be a mistake to simply eyeball guns and say, ah, it looks like it’s worth $100 because it may be worth $100, or it may be worth far more than that. So it’s important to look at that.
Now you suggest that there’s a way around it. I wouldn’t say it’s a way around it. It’s simply another avenue in the law. And that’s firearms trusts. They’ve become very popular, especially with NFA weapons. I guess they’ve become very popular in estate planning generally.
But the issue with NFA weapons is they’re registered to a single person, and only that person can enjoy it. With a trust, there can be multiple trustees so that multiple responsible people could possess this firearm. The benefit of having this trust is it will survive the death of the grantor. So you could effectively transfer possession of that weapon through a trust by having some of your trustees identified in advance or your beneficiary identified in advance.
Toby: Then because they’re listed, the trust owns the item. Now, we don’t have a situation where the owner has passed. You might […] that passes and you might have a trustee that passes, but it’s not one and the same where all of a sudden me possessing it.
If I’m an heir and I’m not an executor and I’m not a trustee, if I’m possessing that and there’s no gun trust, I could be committing a felony just by doing that, so this is the workaround for it.
Tom: And the other thing is, by having multiple trustees, you can have one person who is knowledgeable about firearms, has an appropriate place to secure that firearm. Let’s say you as the executor go into the house, open up the safe and find a machine gun. You may not be a gun-savvy person, you may not have a great place to secure that weapon, but you can’t simply give it to someone else to secure. If there’s a trustee that is already prepared to secure that weapon and maintain it, that can really be a benefit.
Toby: So you have the gun trust, but more importantly you might need a gun safe or someplace where you can put it where you’re not sweating it, especially if you’re in one of the households that’s not for gun ownership. There are those folks out there that are scared to death of these things, and the last thing you want to do is have a machine gun in your house. You might be going, oh my goodness. So you need to have some place where you can put it where it’s safe and nobody can get their hands on it.
Now, if I am the executor (let’s say) because I just went through this, if I’m the executor, can I lawfully possess that firearm until I can get it to where it’s transferred to somebody else?
Tom: Yes. ATF has explicitly said that in an open letter. It is appropriate for the executor to possess that firearm as they work to transfer, that they should diligently move to get it transferred to a person who can possess it.
Toby: And is it enough to have a will that says the trust or the executor have a living trust where I might be the trustee, or do I need to do something to make sure that I’m documenting my right to possess that?
Tom: The probate records can serve that purpose. ATF has laid that out in its open letter. You mentioned something, though, that I think’s worth pointing out. We’ve talked about possession. There is actual possession—you holding a gun in your hand—but there’s also something that the law considers constructive possession where you may not physically have it in your hands, but you have unrestricted access to it.
It’s important to understand that (let’s say) the executor lives in a house with someone who is prohibited from possessing firearms—a convicted felon, spouse, son, or something. Leaving those guns unsecured would give those people constructive possession or access to those firearms. So it is really important that you think about possession, security, transfers, all of those things. There’s just a lot that goes into dealing with firearms.
Toby: Let’s go back to uncle Ed. He lives on his own, in his own house. You didn’t realize this, but he had a huge firearm collection. He’s got some stuff that you suspect might be some contraband, and if it is contraband—we should get into what we do with it there—is it enough just to lock the door and say, well, that’s his house, I’m going to go through, I’ll file the court documents and things like that. Or do I need to take steps to secure those firearms so that if somebody breaks in, they don’t take them.
Tom: Federal law does not impose any particular requirements on securing firearms. There are some state or local laws that do impose obligations on secure storage, but just as a matter of best practice.
Guns are often stolen, and when they’re stolen, they’re very often used to commit crimes, sometimes terrible violent crimes. It is important that people take appropriate steps to secure firearms, keeping them away from people that should not have access to them legally like felons, but also people who don’t have the maturity to possess them like children who may find them and God forbid have an accidental discharge. Every year we see people injured in that way.
Again, the law varies depending on where you are, but just as a matter of best practice, securing their firearms is a good idea.
Toby: So we secure them, and then what if it is contraband? You look at it and you go, you should not have had this. There was no paperwork. You contact ATF and they say there’s no record of it. Are you in deep doo-doo now? You’ve got the kilo of coke now right in your possession. What do you do to make sure that there’s not a blowback on you?
Tom: The good thing is this actually happens fairly regularly. The sawed-off shotgun is a really good example. Colloquially are called sawed-off shotguns or what the law refers to as short round shotguns or weapons made from shotguns.
Although they’ve required registration and tax payments since 1934, there are a lot of people that simply take a hacksaw, saw the barrel off their shotgun, and they have made an illegal firearm.
You could apply it to the ATF to make a lawful short-barrelled shotgun, but a lot of people don’t. They just saw that barrel off. You open that safe and you find that short barreled shotgun. If you don’t also find paperwork with it, you can send a request as the executor to the ATF to say, I want to know if this particular NFA weapon is registered.
If it is, great, you can transfer it. If it is not, though, it is contraband and it either must be destroyed, which you could do privately or you can abandon it to the ATF and they will destroy it for you. The ATF understands that these things happen simply because you open a safe and to your surprise there’s a short round shotgun in there. You tell ATF doesn’t mean they’re coming to put the cuffs on you. But one of those two options are your only two options. You can’t remedy an NFA violation like that.
Toby: Yeah, so it is done. They don’t have a license. They made contraband. Again, it’s a kilo of coke. You need to give it to the NFA or you need to destroy it. Do they give you instructions on how to destroy it? Imagine it’s not just bearing it in the backyard or throwing it in the dumpster. You got to do some stuff.
Tom: Let me just say for the legal purists who made a challenge, there are a couple of minor exceptions to what you can do with an unregistered NFA weapon. They are not germane to what we’re talking about here. But yes, the ATF does actually publish directions on how to appropriately destroy a firearm.
You may think in your mind, oh, I cut it with a bandsaw. It’s appropriately destroyed but not in the eyes of the ATF. Instead, you’d have to use an acetylene torch to cut it so it displaces a certain amount of metal. As you can see, there are a lot of rules and regulations and policies that govern how to handle firearms in all their various configurations.
Toby: All right. I’ll ask you one more question and then I’ll thank you. You’ve been very generous with your time. What could a gun enthusiast—somebody who owns firearms—do this weekend to protect their spouse and kids from having to deal with a major headache if something happens to them?
Tom: There are a few things you could do. You can go and download that ATF form and take an inventory of your firearms. You can think carefully about who you would like to have your firearms and identify somebody who can lawfully possess them. Of course, keeping in mind, just because they can lawfully possess them today doesn’t mean that one day they won’t fall into one of those prohibited categories.
The next thing you can start to do is plan your estate for after you’re gone. Whether that involves getting a trust and identifying someone else to be a trustee that can hold the firearms, or including contingencies for who the firearms could pass through should one of your beneficiaries become ineligible. What you don’t want to happen is something that is very important to you—sentimental, a family heirloom—to fall into the government’s hands and be destroyed simply because someone made a mistake along the way.
Toby: Absolutely. That was really good advice. I want to say thank you, Tom, for joining us, and I’ll put your information for anybody who has questions, you could put them in the comments.
Tom, when this gets published, I’ll share it with you so you can go in there. If somebody asks questions, you can always pop in there and point them in the right direction. But we’ll also put your law firm’s web address and some identifying information. I’ll make sure that gets up there so people can go ahead and find you if they have any questions.
This is something I would say just as a going-away to all the folks out there who are watching. Have somebody like Tom on your speed dial. Even if you put it into, hey, call Tom Chitham if something happens. He’ll be able to point you in the right direction if you have firearms that were going to fall underneath the what is the NFA, where you’re going to have things where you know that it’s not just plain Jane, hey, you can’t just hand it off, but that you’re going to need to do some ATF forms. Just put that in there and point them into somebody who’s knowledgeable so that you’re not leaving a mess for your heirs.
Like and subscribe guys. If you have comments, put it down below. Tom, thanks again for joining us.
Tom: Thanks, Toby. I really appreciate it.
