ATF, the regulatory watchdog for alcohol, tobacco, and firearms in the United States have to keep up with the new changes and challenges happening in the firearm industry as well as the socio-political level. At the same time, it also has to patch loopholes that may be taken undue advantage of. The agency does so by introducing new policies, amending existing rules, updating technology, procedures and processes, enabling them to be able to address the challenges and changes taking place in the firearm ecosystem.
NFA Rule 41F or ATF Trust Rule is one of such rules that was introduced in order to make gun approvals more comprehensive and improve the agency’s understanding of the applicants seeking approvals for making or transferring firearms.
What is NFA Rule 41 F or ATF Trust Rule? Why was it introduced? What are its advantages and disadvantages? We have covered everything in this article.
What is NFA Rule 41 F or ATF Trust Rule?
NFA Rule 41F requires “responsible persons” or the “trusties” who are filing as a trust or other legal entity for approval to make or transfer NFA firearms, must apply with new ATF Form 1, Form 4, or Form 5, as applicable. The new rule also required individuals, trusts, as well as legal entities applying for approval to make or transfer firearms under the National Firearms Act, have to go through a background check. Before the NFA Rule 41F, trustees or responsible persons were not required to go through the background check.
NFA Trust rule change
NFA Rule 41F, i.e. Machineguns, Destructive Devices, and Certain Other Firearms; Background Checks for Responsible Persons of a Trust or Legal Entity With Respect To Making or Transferring a Firearm, was signed by the attorney general on January 4, 2016. NFA Rule 41F was introduced in order to amend existing regulations related to making or transferring NFA firearms. This new rule mandated that individuals, trusts, as well as legal entities applying for approval to make or transfer firearms under the National Firearms Act, have to go through a background check.
Though the NFA Rule 41F requires that a copy of all applications to make or transfer a firearm be forwarded to the chief law enforcement officer (CLEO) with the Responsible Person Questionnaire Form (ATF Form 5320.23). These forms need to be sent to CLEO of the locality in which the applicant/transferee or responsible person resides. Though the NFA Rule 41F introduced an additional background check process, it also abolished the requirement for certification to be signed by the CLEO.
What is an NFA Gun Trust/ATF Gun Trust?
An NFA Gun Trust, also known as the ATF Gun Trust is a legal instrument, which enables the persons named in the trust, own and share firearms mentioned in that instrument. For example, a group of people can create an “NFA Gun Trust” to enlist NFA firearms as well as themselves, those firearms will be shared among.
Why are the NFA Gun Trusts created?
When you get approval to own a firearm as an individual, it is you and only you, who can legally possess that firearm. You cannot simply share your firearm with your family, friends or allow anyone to use it. Sharing your firearms with others is not only illegal but can also lead you to a lot of trouble. This barrier can be circumvented with an NFA Gun Trust.
An NFA/ATF Gun Trust is a legal setup, designed to enlist your firearms as well as the individuals who can have access to them. You can also define how your firearms will be inherited after your death or in case you are incapacitated. The people who will be inheriting from you eventually will not break any law. The Firearms are always handled in accordance with the law and your wishes are carried out.
You can share firearms with people that you name as trustees because the National Firearms Act says when you buy NFA firearms in your name, you are the only one who can lawfully be in possession of it. National Firearms Act is about constructive possession, if you leave it at home with other people, and they can control it, you will be breaking the law.
So an NFA Gun Trust is a way to comply with the laws to say these are the people that I trust, they are trustees and can be in possession of my firearms.
NFA Trust vs. individual approvals
So far, we have an impression that gun trust gives us more flexibility and can save us from many legal issues about firearm possessions. However, both, NFA Trust vs. individual approval offers their own set of advantages and disadvantages.
Advantages of a gun trust
There are several benefits of a gun trust. It is simpler to file as an individual while filing as an ATF Gun Trust requires you to fill out additional forms as well as furnish additional details.
When you die, trust is a will substitute. It directs where your firearms go without the involvement of the probate court. So trusts have a lot of value and purpose above and beyond bypassing that extra paperwork when you purchase an NFA firearm.
NFA Gun Trust gives you more control
One of the benefits of a gun trust is that it gives you more control. NFA Gun Trust is a way for you to write your own rulebook. If you ever become incapacitated or when you die, most people wouldn’t want the government involved to make decisions about their firearms or who’s in charge of it. And when you engage in trust planning, you’re circumventing that government intervention.
With a gun trust, you can name somebody else on that trust as a co-trustee and they can also be in possession of the NFA firearm. A gun trust is a design or a plan for you if you want your family to own, share, possess, and pass on your firearms or firearm-related accessories.
Plan for contingencies in advance
Another benefit of a gun trust is that with an NFA/ATF Gun Trust, you can plan for contingencies in advance. For example, if your kids are too young but you want to make sure that when they’re older, they can be in charge. This can be done with an NFA/ATF Gun Trust. They can inherit and they can also be the trustees or the managers of your trust.
If you are ever incapacitated and there’s a court ruling that says you’re incapacitated, you lose your gun rights. It can cause legal complications with respect to possession of firearms, in terms of passing those firearms to your heirs. A trust can last beyond your lifetime and continue to hold the firearms for your heirs or it can just distribute the firearms at that time. It just depends on how it’s drafted.
Creating a gun trust saves your heirs from potential legal issues and the court or government stepping-in case you pass away. With a trust, you can name someone who can step in and lawfully manage those firearms without a court order in you ever become incapacitated or die.
So there are several benefits of a gun trust, however, there are also some potential disadvantages of a gun trust that you keep in mind while creating a gun trust for your firearms and firearm accessories.
Disadvantages of a gun trust
After understanding the several benefits of a gun trust, it might tempt you to get your firearm approval through the gun trust route. There is no doubt that a gun trust offers several advantages when you compare NFA trust vs. individual approvals. However, there are also some disadvantages of a gun trust that you should keep in mind before finalizing which way you want to go.
When you file for approval to make or transfer NFA firearms as NFA Gun Trust/ATF Gun Trust, you will have to go through more paperwork such as filling out the Responsible Person Questionnaire Form (ATF Form 5320.23) and providing details of individual parties (trustees) included in your gun trust. You would also include photos and fingerprints of each responsible party enlisted in your gun trust.
Approvals may take longer than individual filing
Securing an approval to make or transfer NFA firearms from ATF may take longer when filed as an NFA/ATF Gun Trust. The reason behind the longer time taken via the gun trust route is that there may be several “responsible persons” in the gun trust and the ATF has to perform background and other checks on individual responsible person/NFA trust beneficiary, which is a mandatory process as per the NFA Rule 41F.
However, when you file as an individual, this process is reduced to a single person, hence, completes faster than filing as an NFA Gun Trust.
NFA trust vs. Individual: Which is better?
As we have discussed above, there are several benefits offered by an NFA Gun Trust. You can have many individuals use your firearms/NFA items, as well as you can define what happens to your NFA possessions after you. It offers more flexibility and control.
However, when you file for approval as an individual, to make or transfer a firearm, it is a comparatively straightforward process. It takes lesser paperwork and gets you faster approvals. However, the downside is that only the approved individual can possess and use that firearm. Not even your parents, spouse, or children can possess or control your firearm as it would be illegal to do so.
If you compare NFA trust vs. Individual filing, NFA Gun Trust seems to be winning considering the several benefits it offers. However, neither is actually better than the other and that is the reason why both the filing modes exist.
If you want to be the sole owner of your firearm(s) and do not want them to be shared with or controlled by anyone else, filing as an individual is not only easier but also offers faster approval times. However, if you want your firearms to be possessed by several people or “responsible person” (such as in a trust, partnership, association, company, or corporation), filing as an NFA Gun Trust would be wiser.
Since July 13, 2016, ATF Rule 41F is in effect and it is now mandatory for “responsible persons” to get through the background checks who are enlisted in your trust or other legal entity if you are filing as one.
An NFA Gun trust can make sure that your firearms remain private and are passed seamlessly to your heirs. It provides a plan for the people that you want to be in charge of those firearms if you are ever incapacitated.
A trust is designed to preserve your assets and to give direction to the people you trust and care about. It not only allows trustees to own and share firearms but also directs about what to do with your firearms if something happens to you.