Difference between revisions of "Inheriting firearms, both within California and Interstate"

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(Within California)
(Within California)
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  pursuant to Chapter 5 (commencing with Section 28050).
 
  pursuant to Chapter 5 (commencing with Section 28050).
  
[http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=27875. PC 27875] (old 12078(i))  exempts '''inheritance''' from using an FFL inside California.
+
[http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=27875. PC 27875] (old 12078(i))  exempts '''inheritance''' from using an FFL inside California.  
  Section 27545 does not apply to a person who takes title or
+
27875. Section 27545 does not apply to the transfer of a firearm by  
possession of a firearm by operation of law if both of the  
+
gift, bequest, intestate succession, or other means from one
following requirements are satisfied:
+
individual to another, if all of the following requirements are met:
  (a) The firearm is not a handgun.
+
  (b) The person is not prohibited by state or federal law from
+
(a) The transfer is infrequent, as defined in Section 16730.
  possessing, receiving, owning, or purchasing a firearm.
+
(b) The transfer is between members of the same immediate family.
 +
(c) Within 30 days of taking possession of the firearm, the person to
 +
whom it is transferred shall forward by prepaid mail, or deliver in
 +
person to the Department of Justice, a report that includes
 +
information concerning the individual taking possession of the
 +
firearm, how title was obtained and from whom, and a description of
 +
  the firearm in question. The report forms that individuals complete
 +
pursuant to this section shall be provided to them by the Department
 +
of Justice.
 +
(d) Until January 1, 2015, the person taking title to the firearm
 +
shall first obtain a handgun safety certificate if the firearm is a
 +
handgun, and commencing January 1, 2015, a firearm safety certificate
 +
for any firearm, except that in the case of a handgun, an unexpired
 +
handgun safety certificate may be used.
 +
(e) The person receiving the firearm is 18 years of age or older.
  
and PC 27920
+
and [http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=27920. PC 27920]
 
   
 
   
 
  Section 27545 does not apply to a person who takes title or
 
  Section 27545 does not apply to a person who takes title or
Line 37: Line 51:
 
  firearm in question.
 
  firearm in question.
  
The appropriate form to report a '''firearm''' transfer is [http://oag.ca.gov/sites/all/files/pdfs/firearms/forms/oplaw.pdf Operation of Law or Intrafamilial Handgun Transaction Report]. [http://law.onecle.com/california/penal/16960.html PC 16960] provides the definition of 'operation of law'
+
[http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=16960. PC 16960] provides the definition of 'operation of law'
 
  As used in Article 1 (commencing with Section 26500) of
 
  As used in Article 1 (commencing with Section 26500) of
 
  Chapter 1 of Division 6 of Title 4, "operation of law" includes, but
 
  Chapter 1 of Division 6 of Title 4, "operation of law" includes, but
Line 47: Line 61:
 
  Section 850 of the Family Code.
 
  Section 850 of the Family Code.
 
  ...
 
  ...
 +
 +
The appropriate form to report a '''firearm''' transfer is [http://oag.ca.gov/sites/all/files/pdfs/firearms/forms/oplaw.pdf Operation of Law or Intrafamilial Handgun Transaction Report].
 +
  
 
=== Cannot transfer 'assault weapons' by inheritance ===
 
=== Cannot transfer 'assault weapons' by inheritance ===

Revision as of 04:26, 19 July 2014

Inheriting Firearms

Inheritance requires that the donor be actually deceased. A gift in anticipation of death is not an inheritance.

Within California

Penal Code 27545 (old 12072(d)) requires using an FFL for most transfers.

Where neither party to the transaction holds a dealer's
license issued pursuant to Sections 26700 to 26915, inclusive, the
parties to the transaction shall complete the sale, loan, or 
transfer of that firearm through a licensed firearms dealer
pursuant to Chapter 5 (commencing with Section 28050).

PC 27875 (old 12078(i)) exempts inheritance from using an FFL inside California.

27875.  Section 27545 does not apply to the transfer of a firearm by 
gift, bequest, intestate succession, or other means from one 
individual to another, if all of the following requirements are met:

(a) The transfer is infrequent, as defined in Section 16730.
(b) The transfer is between members of the same immediate family. 
(c) Within 30 days of taking possession of the firearm, the person to
whom it is transferred shall forward by prepaid mail, or deliver in
person to the Department of Justice, a report that includes
information concerning the individual taking possession of the
firearm, how title was obtained and from whom, and a description of
the firearm in question. The report forms that individuals complete
pursuant to this section shall be provided to them by the Department
of Justice.
(d) Until January 1, 2015, the person taking title to the firearm 
shall first obtain a handgun safety certificate if the firearm is a
handgun, and commencing January 1, 2015, a firearm safety certificate
for any firearm, except that in the case of a handgun, an unexpired
handgun safety certificate may be used.
(e) The person receiving the firearm is 18 years of age or older.

and PC 27920

Section 27545 does not apply to a person who takes title or
possession of a handgun by operation of law if the person is not
prohibited by state or federal law from possessing, receiving,
owning, or purchasing a firearm and all of the following
conditions are met:
  (a) If the person taking title or possession is neither a
levying officer as defined in Section 481.140, 511.060, or
680.260 of the Code of Civil Procedure, nor a person who is
receiving that firearm pursuant to subdivision (g), (i), or (j)
of Section 16990, the person shall, within 30 days of taking
possession, forward by prepaid mail or deliver in person to the
Department of Justice, a report of information concerning the
individual taking possession of the firearm, how title or
possession was obtained and from whom, and a description of the
firearm in question.

PC 16960 provides the definition of 'operation of law'

As used in Article 1 (commencing with Section 26500) of
Chapter 1 of Division 6 of Title 4, "operation of law" includes, but
is not limited to, any of the following:
  (a) The executor or administrator of an estate, if the estate
includes a firearm.
...  
  (g) A transmutation of property between spouses pursuant to
Section 850 of the Family Code.
...

The appropriate form to report a firearm transfer is Operation of Law or Intrafamilial Handgun Transaction Report.


Cannot transfer 'assault weapons' by inheritance

Penal Code 30910 (old 12285 (b))

  Except as provided in Section 30925, no assault weapon
possessed pursuant to this article may be sold or transferred on
or after January 1, 1990, to anyone within this state other than
to a licensed gun dealer or as provided in Section 31100.

and PC 30915

Any person who obtains title to an assault weapon registered
under this article or that was possessed pursuant to subdivision
(a) of Section 30630 by bequest or intestate succession shall,
within 90 days, do one or more of the following:
  (a) Render the weapon permanently inoperable.
  (b) Sell the weapon to a licensed gun dealer.
  (c) Obtain a permit from the Department of Justice in the same
manner as specified in Article 3 (commencing with Section 32650)
of Chapter 6.
  (d) Remove the weapon from this state.

Interstate

Federal law exempts inheritance from using the FFL. 18 USC 922 (a)(5)

(a) It shall be unlawful -

(5) for any person ... to transfer, sell, trade, give, transport,
or deliver any firearm to any person ... who the transferor knows
or has reasonable cause to believe does not reside in ... the
State in which the transferor resides; except that this paragraph
shall not apply to 
(A) the transfer, transportation, or  delivery of a firearm made
to carry out a bequest of a firearm to, or an acquisition
by intestate succession of  a firearm by, a person who is 
permitted to acquire or possess a firearm under the laws of the
State of his residence, and
(B) the loan or rental of a firearm to any person for temporary use
for lawful  sporting purposes;

Note that this means 'Uncle Bob wanted me to have these' is not sufficient; Uncle Bob's wishes must have been in writing and specifically have named the recipients of his guns, or a court/probate action must have made that distribution.

Summary: Federal law exempts inheritors from using an FFL for interstate transfer of the inherited firearms, and California law also provides for that exemption.