What Happens to Your Firearms If You Become Incapacitated or Pass Away?

Firearms are often overlooked in estate planning, but they present unique legal and practical issues. Unlike bank accounts or real estate, firearms are regulated property, and improper handling can create serious legal problems for your family.

If you own firearms, a clear plan is not optional—it’s necessary.

Why Firearms Require Special Planning

Firearms are subject to both federal and state laws, and not everyone is legally allowed to possess them. That means your personal representative, trustee, or agent under a power of attorney must be careful about how they handle and transfer them.

The biggest risks are:

• Transferring firearms to someone who is legally prohibited
• Improper possession during administration
• Violating federal laws regarding certain regulated firearms

These issues can arise quickly if no plan is in place.

What Happens at Death

When you pass away, your firearms become part of your estate or trust—just like any other asset. But unlike other assets, your personal representative cannot simply hand them out.

Key Considerations:

1. Who Can Legally Receive Them

Firearms can only be transferred to someone who is legally allowed to possess them under federal and Florida law. That excludes certain individuals, such as convicted felons or those with disqualifying conditions.

2. Probate vs. Trust

• If your firearms are owned individually, they will pass through probate.
• If properly assigned to a revocable trust, your trustee can manage and distribute them without probate.

That said, even in a trust, the trustee must follow all applicable laws.

3. Federal Firearms (NFA Items)

Certain firearms—such as suppressors, short-barreled rifles, and machine guns—are regulated under the National Firearms Act (NFA).

These require:

• Registration with the federal government
• Approval before transfer (even at death)

Improper handling of these items can create serious federal liability.

What Happens During Incapacity

This is where most plans fall apart.

If you become incapacitated, someone needs legal authority to access and secure your firearms. Without proper planning:

• Your family may not have access
• Your firearms may be left unsecured
• No one may have clear authority to transfer or store them

Durable Power of Attorney

A properly drafted durable power of attorney should include specific authority to:

• Access and secure firearms
• Transfer or store them as necessary
• Work with licensed dealers if needed

Without this language, your agent may be hesitant—or unable—to act.

Trust Planning

Many firearm owners use a revocable trust (or a specialized firearm trust) to:

• Allow multiple responsible individuals to lawfully possess the firearms
• Provide clear instructions for management during incapacity
• Avoid gaps in legal possession

This is especially important for NFA-regulated items.

Practical Steps You Should Take Now

This is where good planning makes all the difference.

1. Create an Inventory

Maintain a private, up-to-date list of:

• Firearms owned
• Serial numbers
• Location of storage
• Any registration documents (especially for NFA items)

Do not put sensitive details directly into your will—keep them in a separate memorandum.

2. Choose the Right People

Make sure your:

• Personal representative
• Trustee
• Agent under power of attorney

…are willing and legally able to handle firearms.

3. Use Proper Legal Structures

Depending on your situation:

• A revocable trust may be sufficient
• A firearm-specific trust may be appropriate for more complex collections

4. Provide Clear Instructions

Your plan should address:

• Who receives the firearms
• What happens if a beneficiary cannot legally possess them
• Whether items should be sold, transferred, or retained

5. Work With a Licensed Dealer When Needed

In some cases, transfers should go through a Federal Firearms Licensee (FFL), especially if:

• The recipient lives in another state
• There is any uncertainty about legality

Common Mistakes to Avoid

These come up more often than they should:

• Leaving firearms to someone without confirming legal eligibility
• Failing to plan for incapacity
• Ignoring NFA requirements
• Assuming a will alone is enough
• Not telling anyone where firearms are located

Each of these can create real problems for your family.

Final Thoughts

Firearms are not just another asset—they require deliberate planning. The goal is simple: make things as easy and as lawful as possible for the people you trust.

If you have questions about how to properly incorporate firearms into your estate plan, it’s worth addressing now rather than leaving your family to sort it out later.

If you’d like help putting a plan in place, contact Bart Scovill, PLC through our website contact form to discuss your options.

Disclaimer: This article is for general informational purposes only and is not intended as legal advice. The information provided may not apply to your specific situation, particularly with respect to federal and state laws governing firearms. Reading this article does not create an attorney-client relationship with Bart Scovill, PLC. For advice regarding your individual circumstances, please contact our office through our website contact form.