Gun trusts…

More and more Illinois residents own and bear firearms. Until July of 2013, the Village of Goreville, Illinois had an ordinance that required it residents to own a firearm.1 Of course we are well aware of the Second Amendment right to bear arms.2 We also know that Illinois recently was forced to allow concealed carry for self-defense.3 With the recent adoption of the right-to-carry in Illinois under the Firearm Concealed Carry Act,4 an Illinois attorney might be confronted with a client that wants and/or believes there is a need for a gun trust.

While the attorney unfamiliar with this area of law could consult with one of several firms that specialize in this area, a first step might be to review the recent article by Professor Lee-ford Tritt5 entitled, Dispatches from the Trenches of America’s Great Gun Trust Wars.6 The article can also be found on SSRN at the following link: <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2611781>.

Below is the abstract of the article.

Without question, the national dialogue pertaining to the right to bear arms and the possible expansion of gun control regulations is shaping up to be one of the more heated political topics of the twenty-first century. At the moment, fervent participants on both sides of this ongoing debate have focused a spotlight on an estate planning instrument commonly referred to as a “gun trust.” Typically, estate planning products rarely cause the kind of nationally impassioned discussion as seen with gun trusts. So why have trusts, a commonly used estate planning tool, become entangled in this lively, and often vitriolic, national discussion concerning the purchase and possession of firearms? Moreover, is recent attention paid to these trusts beneficial to, or distracting from, the broader national discourse concerning federal firearms policy? Unfortunately, America’s gun trust wars have been waged by both sides in an atmosphere of frenzied controversy littered with misinformation. Regardless of the tenor of the debate concerning gun rights and gun control, the fact remains that millions of Americans own firearms, and they have legitimate estate planning concerns. As detailed in this Essay, firearms in an estate can be problematic and may expose an executor, fiduciary, or beneficiary to severe criminal penalties. Although there might be some need for tailored tightening of the laws concerning the transfers to trusts, gun trusts are a legitimate and important estate planning technique with the ability to alleviate the troublingly prejudicial access to guns inherent in current laws. This Essay will examine the legitimate, worrisome, and inaccurate concerns surrounding the uses of gun trusts. ■

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Darrell Dies is a member of the Trusts & Estates Section Council, maintains a law practice located in the heart of Woodford County, Illinois and can be reached at dies@darrelldies.com or at 309.282.9112.

1. See <http://www.kfvs12.com/story/22553196/goreville-expected-to-rid-ordinance-require-gun-ownership>.

2. Amendment II, U.S. Constitution. A well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

3. On December 11, 2012, a ruling from the United States Court of Appeals for the Seventh Circuit invalidated Illinois’ total ban on carrying firearms in public for self-defense.

4. 430 ILCS 66/1 et seq.

5. Professor of Law at the University of Florida - Fredric G. Levin College of Law; Director, Center for Estate Planning.

6. 108 Northwestern University Law Review 743 (2014).