I recently came across a message on a firearms forum posted by a resident of Massachusetts asking whether he could establish a “New Hampshire gun trust” and acquire/store NFA firearms in New Hampshire.
Forming a Gun Trust with a Co-Trustee in Another State
Based on the facts provided, the answer would likely be “no”. But that doesn’t mean that the questioner is completely out of luck. The best solution would be forming a gun trust with a New Hampshire resident as a co-trustee, assuming he has a friend or family member in New Hampshire that he could appoint. The reason for this is that the questioner, as a Massachusetts resident wouldn’t be able to lawfully acquire NFA items in New Hampshire unless he or another trustee of the trust is a bona fide resident of that state. As a technical matter, a person can be a resident of two different states for purposes of federal firearms law and the submission of a Form 4473 (we’ll discuss this more in another post). Also, the gun trust itself doesn’t necessarily need to be a New Hampshire gun trust, however. We’ll discuss this topic below.
What’s the Difference Between a “New Hampshire Gun Trust” and “Massachusetts Gun Trust”?
At the most basic level, the difference between a “New Hampshire gun trust” and a “Massachusetts gun trust“, or a generally comes down to just two things: (1) the city (or county) and state where the settlor or grantor said to resident; and (2) the governing law provision. The governing law provision usually just identifies the laws of a particular state for purposes of gap-filler when it comes to trust and estate law, and rarely limits what firearms can be owned by the trust or implicates state-specific firearms laws. (Note: A properly drafted gun trust will have some specifics addressing particular state and local laws – especially when it comes to Massachusetts law – but do so in a very flexible way, without impacting how the gun trust can be operated outside of any particular state or locality.)
A Gun Trust Can Have a Situs in More than One State
As a technical matter, a gun trust can generally have a “situs” (where the NFA items are stored, owned, and operated) in any other state(s), no matter where the trust was formed or what state law governs the trust itself. In other words, a Massachusetts gun trust can hold legal title to NFA items stored, owned, and operated in New Hampshire.
Discussing Your Situation With Your NFA Lawyer and Finding a Knowledgeable NFA Dealer
Unfortunately, many NFA firearms dealers can be reluctant to transfer NFA items to a trustee of an “out-of-state” trust. As a result, it’s worth discussing with your NFA lawyer the best way to be identified on the trust (i.e., where you reside) and what the governing law of the trust will be (e.g., New Hampshire law or Massachusetts law). It’s also worth asking your gun trust lawyer for a recommendation of an NFA dealer in the state where the NFA items will be acquired, since many can be reluctant to sell to a trustee of an “out-of-state” gun trust.
If you have questions about how to set up a gun trust with a trustee in one or more other states, don’t hesitate to contact us.