What Is a Florida Gun Trust and How Does It Work?

A Florida gun trust is a revocable trust designed to hold and manage ownership of firearms regulated by federal law. It includes provisions to comply with federal firearm regulations, offering an alternative to individual firearm ownership. A gun trust allows multiple qualified trustees to legally share possession and use of the firearms.

Key Features of a Florida Gun Trust

1. Trust Ownership – The trust, not an individual, owns the firearms.
2. Flexibility – Trustees and beneficiaries can be added, removed, or changed during the grantor’s lifetime.
3. Privacy – Changes to the trust can occur without public disclosure.

Types of Firearms Held in a Gun Trust

A Florida gun trust is often used to hold NFA-regulated firearms under the National Firearms Act (NFA). These firearms include:

• Suppressors (Silencers)
• Short-barreled rifles (SBRs)
• Short-barreled shotguns (SBSs)
• Machine guns

A gun trust may also be called an NFA trust, Class 3 trust, Firearms trust, or Title II trust due to the types of weapons it is commonly used to hold.

Is a Florida Gun Trust Valid in Other States?

A Florida gun trust complies with federal firearm regulations and is valid in all states. However, firearm owners must follow the specific firearm laws of their state. Some states have stricter rules about which Title II weapons are permitted, so it’s important to:

• Verify state laws regarding ownership, transfer, and possession of NFA-regulated firearms.
• Understand any restrictions that may apply in states outside Florida.

Why Use a Gun Trust?

A gun trust simplifies firearm ownership by:

• Ensuring compliance with complex federal firearm laws.
• Allowing multiple trustees to use and possess the firearms legally.
• Avoiding probate and simplifying the transfer of firearms after the grantor’s death.

Understanding a Florida Gun Trust

The National Firearms Act (NFA) regulates the possession and use of firearms. Title I of the Act pertains to ordinary pistols, rifles, and revolvers. Most firearms in the U.S. are Title I firearms.

Florida law permits ownership of Title I firearms. The NFA does not require reporting the ownership or transfer of Title I firearms to the federal government.

Title II firearms include more advanced weapons, such as machine guns, silencers, suppressors, short barrel shotguns, and other destructive devices (Molotov cocktails, bazookas, etc.). Federal and state laws impose significant regulation of Title II firearms, and transferring these weapons requires filing documents with the government.

NFA Filing and Reporting Requirements for Title II Guns

The federal government changed the rules for transferring Title II firearms in 2016. An individual transferring a Title II firearm must file an ATF Form 4 with the government and pay a $200 transfer fee. Form 4 includes a photograph of the applicant and FBI fingerprint cards. Notice of the application must be given to the chief law enforcement official (CLEO) in the county where the applicant resides.

Who Can Own a Title II Firearm?

Title II firearms may not be owned by “prohibited persons.” A prohibited person includes any individual who has been convicted of a crime punishable by one year or longer, individuals diagnosed with a mental defect, an illegal alien, a person convicted of domestic violence, or a person who uses marijuana (notwithstanding the legality of marijuana in many states). This rule applies to individuals and to trustees of a gun trust.

Criminal Penalties

Federal law makes it illegal for anyone other than a registered owner who is not a prohibited person to have access to or possess a Title II firearm. Violation of the law does not require unauthorized use or possession, and mere dominion and control over the firearm by an unauthorized person is a felony. Violation of this rule is punishable by up to a 10-year prison term and $250,000 in fines.

Therefore, without a gun trust, an individual Title II gun owner who shares their firearm with a friend or family member who is not a registered owner of the firearm or who themselves are a prohibited person risks criminal prosecution.

Benefits of a Florida Gun Trust

A Florida gun trust may legally purchase and own a Title II firearm. An individual party to a trust that has the authority to manage the trust’s firearms is referred to under federal law as the “responsible person.” Typically, the trustmaker and trustees are the responsible persons. A gun trust provides many benefits over individual ownership of Title II firearms:

• Sharing Use of Firearms. Multiple individuals may not co-own or share a Title II weapon. Multiple trustees of a gun trust, however, may share the same weapon if the trustees are not prohibited persons. Title II firearms may be used by any qualified trustee of a trust. A grantor may add or remove trustees over time. All trustees must not be prohibited persons, must submit paperwork to the government, and cannot transfer firearm possession out of the trust without complying with applicable state and federal regulations.
• Avoid Criminal Liability. In the case of individual firearm ownership, mere access to the firearm by a friend or family member may be a felony. Appointing the same friends or family as trustees avoids criminal liability traps.
• Privacy. A Florida gun trust is a private document. The trusts are not registered with the state, and the public cannot access the trust agreement online. The gun trust will not be filed or recorded upon the trustmaker’s death.
• CLEO. No signature is required by the CLEO (chief law enforcement officer).
• Control After Trustmaker’s Death. In the case of individual firearm ownership, the death of the registered owner may cause the decedent’s firearms to be part of a public probate proceeding. Probate administration may result in the transfer of the Class II firearm to a minor, a prohibited person, or another unauthorized owner. Such transfer could result in government confiscation or a criminal violation of the NFA. Trust firearms are not involved in the decedent’s probate proceedings. The NFA does not consider the inheritance of a firearm by a trust beneficiary to be a regulated transfer. The successor beneficiaries of the trust do not have to file an ATF form, pay a transfer fee, or report to the local CLEO. The remaining trustees, or qualified beneficiaries added as trustees after the grantor’s death, may legally use and control the firearm.
• Control During Trustmaker’s Incapacity. The gun trust is designed to accommodate the trustmaker’s incapacity. As long as the trustmaker has appointed a co-trustee or a successor trustee the appointed person may legally hold and use trust firearms in the event of the trustmaker’s legal incapacity.

Is a Gun Trust Better than an LLC or Corporation?

Some people consider owning a Title II Firearm in an LLC or corporation. The principal advantage of an LLC or corporation is limited liability. The entity provides the same “corporate shield” from lawsuits that is afforded in normal commerce. The corporate shield limits civil liability and not criminal NFA violations. Shares of a corporation or LLC may be transferred without ATF filing or approval.

The biggest disadvantage of LLC or corporate firearms ownership is the required filings and reports. Entities must submit annual filings to Florida and pay filing fees. Failure to comply will cause administrative dissolution. The dissolution of a legal entity causes the entity’s assets to be automatically distributed to the underlying owners by operation of law. This event probably would constitute an NFA violation.

Also, each corporation or LLC must disclose the entity’s managers or directors on a public state submission. In states where disclosure of managers and directors is not required (e.g., Delaware and others), the corporation or LLC may be “hijacked” by anyone claiming to be a director or manager. On the other hand, a gun trust does not publicly disclose its trustmaker or trustees involved in firearm ownership.

Disadvantages of Individual Ownership

A person who owns a Title II firearm in their individual name must be with the item at all times when it is in use. The individual is responsible for keeping the Title II weapon in a secure location indicated on the ATF forms with the government. The individual legally is the only person who may access the weapon.

Florida Gun Trust vs. Revocable Living Trust

A living trust is commonly used to transfer assets upon death without probate. Unlike a revocable living trust, the gun trust has special provisions to comply with the NFA regulations. A properly drafted gun trust should include at least the following provisions:

1. A gun trust should transfer weapons upon the trustmaker’s death only to adult beneficiaries who may legally own the weapon in the beneficiary’s state of residence and who are no prohibited persons pursuant to the NFA.
2. The trust document should define “prohibited persons” and ensure that successor or additional trustees are not prohibited persons.
3. The original grantor and trustee of the trust should consider that successor trustees may not be knowledgeable about NFA rules. The trust document should explain guidelines for their exercise of discretion in the handling and conveyance of Title II trust firearms.
4. Arrangements should be made for terminating the trust and distributing the proceeds to responsible and lawfully qualified successor beneficiaries.
5. The power to amend or revoke the trust must be restricted so that proposed amendments do not violate state or federal firearm laws.
6. The trust should explain the duties of the trustee to repair and maintain firearms and give trustees powers to store and use firearms.
7. The trust must include typical living trust provisions regarding property other than firearms, including cash, that the settlor may contribute to the trust or obtain from the sale of trust firearms.
8. Consider the appointment of a trust protector to replace trustees when appropriate, modify the trust to comply with changing firearm laws, move the trust to another jurisdiction, or resolve disputes among beneficiaries and trustees without having to engage in formal mediation or litigation.

How to Set Up a Gun Trust in Florida

People cannot purchase a firearm and then transfer the firearm to a gun trust without filing an ATF Form 4 and paying a Tax Stamp. The best practice is for the gun owner (the trustmaker) to first create the gun trust agreement. Next, the initial trustee should open a trust bank account, and the grantor should contribute to the trust enough money to purchase the firearm. Then, the trustee can purchase the firearm in the name of the trust.

The initial trustees must be responsible people and their names listed on an ATF Form 4 application. Each responsible person in the trust agreement (usually the grantor and all trustees) needs to complete their own ATF Form 23 as an individual. Each initial trustee submits fingerprint cards and a passport photo with an ATF 5320.23 application.

Adding a Trustee to a Gun Trust

Trustmakers can add trustees to a revocable gun trust by amending the trust. Each new trustee must be a responsible person. Adding a trustee to an existing gun trust can be accomplished with a short, printed amendment that refers to the original trust and provides for the addition of one or more trustees. The amendment should be signed by the trustmaker and the new trustee. The amendment should be witnessed and notarized. You do not need an attorney to amend your gun trust.

Adding a trustee through amendment does not require paperwork submissions to the federal government. However, if the trust thereafter acquires a new item requiring a tax stamp, then all the trustees must submit a form 5320.23 together with fingerprints and photos.

Gun Trust Schedules

Most gun trust documents have an attached schedule (usually “Schedule A”) listing firearms owned by the trust. If the trustmaker purchases a new Title II firearm, they can draft a new Schedule including the added item and does not have to amend the trust. The trustmaker may elect not to use any Schedules and instead list initial trust property within the trust agreement.

Newly acquired items can be titled in trust name and transferred to the trust by assignment. A trustmaker must provide a copy of the gun trust including schedules to the ATF and Class 3 dealers. Some people avoid using Schedules to retain privacy over non-Title II items owned in their trust.

Do You Need a Lawyer for a Florida Gun Trust?

Many internet websites sell pre-packaged, standard gun trusts. The customer merely fills in some blanks to generate forms to be submitted to the government. Saving money using website forms may not be the best choice when an innocent error or misunderstanding of website instructions could result in criminal liability and confiscation of the firearm.

For example, a gun trust must comply with Florida trust statutes. An online trust that does not meet all requirements of Florida trust law may be invalid. Some online trust forms do not limit possession of the trust’s firearms so that control and access may inadvertently be given to a prohibited person resulting in criminal liability. Or the person using a pre-made form may pay for the firearm with their own personal money rather than first opening a trust checking account. This direct purchase would be improper and illegal.

Finally, the Florida Supreme Court has held that it is the unauthorized practice of law for a non-lawyer to draft a living trust. A gun trust is a specialized type of living trust. An internet site that drafts a gun trust for a Florida resident may be engaged in the unauthorized practice of law in Florida.

FAQs About Florida Gun Trusts