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Posted: 4/15/2010 9:03:43 AM EDT
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I have been planning to have a new trust made that would be more "future proof" and flexible then my current one. I have talked to one lawyer, and have been researching and asking questions, and have been getting mixed signals.
1: Do Co-Trustees have full access to the NFA items? The majority of the stuff and even the lawyer I spoke too said yes. However I found this quote from from an ATF letter: http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/atf_letter72.txt "As to your second question, the National Firearms Act provides that, for any person legally to receive or possess an NFA firearm, such firearm must be registered to him in the National Firearms Registration and Transfer Record. See 26 U.S.C. section 5861(d). The Act also mandates that, for each NFA firearm not in the possession or under the control of the United States, the National Firearms Registration and Transfer Record must include, among other things, the "identification and address of [the] person entitled to possession of the firearm." See 26 U.S.C. section 5841, as implemented by 27 C.F.R. section 179.101. For purposes of these statutory provisions, the term "person" is defined as "[a] partnership, company, association, trust, estate, or corporation, as well as a natural person. See 27 C.F.R. section 179.11. This definition does not include married couple or, for that matter, any other dual or multi-party entities with the exception of formally established partnerships, companies, associations, and corporations. Indeed, there exists no statutory or regulatory authority that can be construed to permit the transfer or registration of an NFA firearm, on a joint basis, to two or more natural persons, including two natural persons constituting a married couple. Accordingly, such transfers and registrations cannot be approved." Can someone clarify? It seems to me the writer of the ATF letter is under the assumption that the question was about if a married couple could share a NFA item, or any other form of couple other than a legal "person", but the list of "person"s include corps and trusts, which can have multiple people. 2: Does the name of the trust have to contain the Grantors name? Ie. Does Homer Jay Simpson have to name his trust "Homer Jay Simpson Revocable Living Trust" or "Simpson NFA Trust" or could he choose to name it "Random Name Trust"? The lawyer I talked too didn't know, and said all the trusts he has made used the individuals name. I have seen both items saying the trust MUST have the Granters name, and other items stating otherwise. Does anyone know the actual LEGAL requirement? |
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The trust is "the person" and the trustees, as agents of the trust may possess trust assets (just like the President or authorized employees of a company may possess items registered to the company).
No, the trust does not need to contain the name of the Grantor. I've heard of such a case where a guy named his trust "In God We", making it the "In God We Trust" ETA, it sounds from your post that you already have a trust? You can't change the name of the trust once it's been established. |
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IANAL, but trust laws are done by State; your local general practice or probate attorney knows best.
As for the trustees, you can give trustees whatever powers you like. Some states have default powers (WI is like this), but for instance in mine, I made it so no one (even me as grantor and trustee) can physically possess any trust property if it would break any laws. THat was just one thing I did to make sure no one gets in trouble if they become a prohibited person for any reason or any length of time. You can make it so trustees can name trustees, purchase property for the trust, sell trust property, or you could make it so the trustees can know the safe combination but not actually handle the property, I suppose. I'm not sure if it's that way in all states, so YMMV, and your local attorney should know best. Your name generally doesn't have to be part of the trust; mine is "XXXXX Family." That also may vary by state, though. |
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Here's a simplified view:
A trust is a box. You put things in the box, and let certain people you trust (trustees) access the items inside the box for use, maintenance, distribution, or sale of those things. You can also let those people put things into the box, or name other people who can access the box. You make these rules in your declaration of trust. When you form a trust (here in WI it can technically be as simple as "here, hold this until I get back"), you give the parties certain powers. You tell those people what their jobs are, and what their abilities are. You also say what happens when you become incapacitated (or legally disqualified from possession) or dead (for instance, "all assets are to be transffered to a Class III SOT and sold, and the proceeds distributed equally amongst my heirs at law"). You make the rules, so you can have whomever you want as trustees, as long as you name them in the declaration as such, and then they have whatever powers you give them in the declaration, for instance, "to physically possess and use trust assets for all lawful purposes." You could also give trustees the ability to name other trustees and/or successor trustees, especially useful lin case of incapacitation or death. IANAL... |
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Quoted:
Here's a simplified view: A trust is a box. You put things in the box, and let certain people you trust (trustees) access the items inside the box for use, maintenance, distribution, or sale of those things. You can also let those people put things into the box, or name other people who can access the box. You make these rules in your declaration of trust. When you form a trust (here in WI it can technically be as simple as "here, hold this until I get back"), you give the parties certain powers. You tell those people what their jobs are, and what their abilities are. You also say what happens when you become incapacitated (or legally disqualified from possession) or dead (for instance, "all assets are to be transffered to a Class III SOT and sold, and the proceeds distributed equally amongst my heirs at law"). You make the rules, so you can have whomever you want as trustees, as long as you name them in the declaration as such, and then they have whatever powers you give them in the declaration, for instance, "to physically possess and use trust assets for all lawful purposes." You could also give trustees the ability to name other trustees and/or successor trustees, especially useful lin case of incapacitation or death. IANAL... +1 That is a very simple explanation. |
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