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Over the years, we have written thousands of gun trusts for our Texas gun trust clients. In addition, we have re-written many gun trusts prepared by other gun trust providers, including most of the Texas gun trust attorneys advertising on the Internet or at gun shows, as well as inexpensive “do-it-yourself” form gun trusts sold by Class 3 dealers and silencer manufacturers that are designed to move their inventory out the door. After becoming aware of the limitations of their original gun trusts and discovering the unique capabilities of our gun trust, many of their clients and customers have made the decision to upgrade their gun trusts to our design and format. For these clients, we provide an “Amended and Restated” gun trust that is a very substantial amendment to their current gun trust.
Overview of Trust Basics
Most gun trusts are revocable living trusts. Essentially, a revocable living trust is a contract between the Settlor and the Trustee. The Settlor is the owner of the items held by the trust. The Trustee’s duty is to manage the trust property on behalf of the Settlor (while the Settlor is living) and on behalf of the Beneficiary (after the death of the Settlor). The key to a revocable living trust is that it is revocable, which means that the Settlor (while living) can change, amend, modify, revoke, or terminate the provisions of the trust agreement at any time.
The document used to change, amend, or modify a trust agreement is referred to as an “amendment.” The document used to revoke or terminate a trust agreement is referred to as a “revocation.” However, the document used to amend and completely supersede the terms of the original trust agreement is referred to as an “amendment and restatement.” The name of the trust and the Settlor of the trust remains the same, but each and every other provision of the original trust agreement is replaced by the terms of the amended trust agreement. The property previously held by the trust is still held by the same trust after the amendment.
Handwritten Changes to a Trust Agreement Are Invalid
When a Settlor wants to change, amend, or modify a trust agreement, the Settlor cannot simply mark the changes on the original trust document and then place the original trust agreement back into the file. Why? Because an amendment must be signed with the same formalities as the original trust agreement. As a result, handwritten changes to the original trust agreement may void the entire trust agreement (at worst) or are required to be ignored by the Trustee (at best).
When is an Amendment Versus an Amendment and Restatement Required?
There are no hard and fast rules regarding when an amendment is required as opposed to an amendment and restatement. Each amendment is a permanent change to the trust agreement, so once an amendment is executed with the proper formalities, the Settlor cannot simply throw the amendment away and pretend it never happened. Further, each amendment is usually attached at the end of the original trust agreement, so every time an amendment is executed, the number of pages that makes up the complete trust agreement increases. If several amendments have been executed over the years, keeping track of the current Trustees, Beneficiaries, Successor Trustees, and the current provisions of the trust agreement can be a challenge. Instead, an Amendment and Restatement should be considered, because all changes are consolidated into one document.
If the changes that a Settlor wants to make are minimal, such as changing who will serve as a Successor Trustee or updating a Beneficiary or Successor Trustee’s legal name due to marriage or divorce, then a simple amendment will work just fine. On the other hand, if the Settlor wants to make significant changes to the trust, such as adding or removing Trustees and/or Beneficiaries, or upgrading the trust to a better format that allows the use of certain management documents such as we provide, then we recommend a complete amendment and restatement of the trust.
Amendment and Restatement of a Gun Trust
When an amendment and restatement of a gun trust document is executed, all current Beneficiary designations, Trustee and Successor Trustee appointments, and all other provisions of the current gun trust are consolidated into one document. All firearms that were purchased or assigned to the gun trust still remain in the same gun trust. In other words, an amendment and restatement does not change existence of the gun trust itself—it only changes the controlling terms of the gun trust. The next time that the Settlor buys an NFA firearm, the original trust agreement and any amendments executed before the date of the amendment and restatement are not provided to the ATF. Instead, the Settlor provides the ATF a copy of the amended and restated gun trust.
How Do You Know Whether You Need to Amend and Restate Your Gun Trust?
When we prepare an amendment and restatement of our clients’ gun trusts, it almost always corrects many of the problems created by other gun trust providers. Below are many of the problems that we have seen when reviewing gun trusts prepared elsewhere. If your gun trust has any of these issues, you should consider upgrading to our “Amended and Restated” gun trust.
- Your gun trust contains a “Schedule A” or inventory of your firearms. Our gun trust is specifically designed to protect your privacy relating to your ownership of firearms. When a third party, such as a gun shop employee or the ATF sees our gun trust, the only property described in our gun trust is the initial contribution of $1.00. Other gun trusts include a Schedule A and/or an Inventory of Trust Assets for listing all firearms in the trust and for disclosing a detailed list of the firearms to all third parties who see a copy of the trust document. Our amended and restated gun trust eliminates this security breach.
- Your gun trust lists you as a settlor, but not as a trustee, of your own gun trust. This means that you own the NFA firearms in your gun trust, but you cannot legally use or possess those NFA firearms! The trustee of a gun trust is the only party who can legally possess the NFA firearms held by the gun trust. This gun trust is sold by some gun trust providers who do not understand the basic requirements of a gun trust. If you are illegally in possession of your own NFA firearms, because you are not listed as a trustee, you need to amend and restate your gun trust with us immediately.
- Your gun trust lists several trustees, but did not require the signatures of those other trustees. Since a gun trust is essentially a contract between the settlor and the trustee(s), a trustee is not a trustee unless he or she signs a document acknowledging that he or she accepts the duties and responsibilities of a trustee. Individuals who are merely listed in gun trusts, but who never signed the gun trust document are not trustees at all. Both you and your “fake” trustee may be committing a felony if you lend your NFA firearms to that person. If you want the ability to easily add and remove co-trustees whenever you would like to do so, our amended and restated gun trust will do this.
- Your gun trust lists several trustees who have each signed your trust document to become a trustee. These trustees are real trustees. This means that, in order to comply with ATF 41F, you will need to round up all of these trustees to provide fingerprints, photographs, and notification to each of their respective Chief Local Law Enforcement Officers (CLEO) each time YOU want to purchase another NFA firearm. With our “Amended and Restated” gun trust and the management documents that work with it, you are in complete control of who is a trustee and when they are a trustee.
- Your gun trust allows beneficiaries to use and possess the NFA firearms in your gun trust without first requiring them to be trustees. Many gun trusts allow all of the beneficiaries of the gun trust to use and possess the NFA firearms in the gun trust, regardless of whether the beneficiary is also serving as a trustee. Because of ATF 41F, all “responsible persons” (generally, anyone allowed to use and possess the NFA firearms) of these gun trusts are required to be fingerprinted and photographed. If you have one of these gun trusts, you may very well be required to submit fingerprints and photographs of infants and minor children, even though it is illegal for them to use and possess the NFA firearms in the gun trust. One of the largest silencer dealers in Texas sold thousands of these gun trusts to their unsuspecting customers.
- Your gun trust contains a provision that allows your beneficiaries to vote unanimously to terminate the trust and liquidate the firearms held by the trust. Look for the term “unanimous” or “if at any time all beneficiaries consent in writing” in your trust. If you find one of those terms, it is likely contained in a provision that lets your kids vote to sell your firearms (while you are still living) and buy that Mustang they have always wanted. One of the largest silencer dealers in Texas sold thousands of these gun trusts to their unsuspecting customers.
- Your gun trust refers to “limited trustees.” There is no such thing as a limited trustee. It was a made-up term by gun trust providers to try to skirt around the new definition of “responsible person” under ATF 41F. If a trust attempts to limit the powers of a trustee, it may run afoul of state statutes that require a trustee to have certain powers to be considered a trustee at all. See our recent post warning of the dangers of limited trustees in gun trusts.
- Your gun trust makes no reference to the statutes governing gun ownership. This is a trust that has been downloaded from some common software, such as Quicken WillMaker. This is not a gun trust. It does not provide your trust with any protection if someone on your trust becomes a “prohibited person.” Even Nolo (the distributors of the Quicken WillMaker Living Trust) expressly states, “If you want to create gun trust, get personalized legal advice from an expert on gun laws. Nolo living trusts are designed for the people who simply want to pass on their asset while avoiding probate.” See http://www.nolo.com/legal-encyclopedia/can-i-nolo-living-trust-gun-trust.html. We can fix your trust. Call us!
- Your gun trust does not allow you to add or remove a trustee without “amending” the trust. Some gun trust providers have devised a way to add or remove trustees with a series of “amendments.” Every “amendment” to a trust is part of the trust that must be submitted to the ATF along with the main trust document when you make your next purchase. Some gun trust providers suggest that you can simply shred the “amendment” after you no longer need it, such as immediately after you file an ATF application disclosing fewer trustees. This is simply wrong and might have serious consequences to you if the ATF ever discovered this. We provide the appropriate management documents to legally add and remove trustees without amending your trust.
- Your gun trust does not provide for successor trustee designations. One of the best ways to protect your gun trust is to name one or more successor trustees. This is our fail-safe position in the gun trust so that, if something happens to you and the trust loses all of its trustees, there is always someone who can step up to the position of trustee and legally possess the firearms. If your beneficiaries are young children, you would need a successor trustee who could hold on to the firearms until the beneficiaries were old enough to make their own decisions about the firearms. The successor trustee in our gun trust is not considered a “responsible person” under ATF 41F, because he or she only becomes a trustee if certain conditions are met in the future.
- Your gun trust limited you in the number of beneficiaries that you could name. This poses a real problem if you have other children who were simply not listed because there was no space to add that information in your gun trust. With our gun trust, we allow you to name as many primary and as many secondary beneficiaries as necessary for your particular circumstance.
Would you like to have the peace of mind that comes with knowing that your gun trust was amended and restated by a Texas attorney who is recommended by several of the largest Class 3 dealers in Texas? Let’s get started!
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