In 2013, the New York State Legislature passed the New York Secure Ammunition and Firearms Enforcement Act, commonly known as the NY SAFE Act, which contains several firearms regulations. Some of these provisions directly impact probate proceedings.
When a firearms owner passes away, the Executor or Administrator of the decedent’s estate may legally possess the guns in question for up to fifteen days for the sole purpose of lawfully transferring or disposing of the firearms. If more than fifteen days is needed, the Executor must surrender the firearms to a law enforcement agency. The law enforcement agency will hold the guns for safekeeping for up to two years. If the weapons are not disposed of or transferred within two years, they will be destroyed. An Executor cannot lawfully transfer or dispose of firearms until they’ve been appointed by the Court. The appointment process timeline can vary depending on how busy the Court is and how extensive the other assets are in terms of preparing estate petitions.
Appointed Executors are now required to file an inventory of pistols and long guns owned by the decedent with the Surrogate’s Court. The short document must include the make and model, gauge and value of each gun. This list will remain sealed despite the fact that most Surrogate’s Court documents are available to the public. The Court may only release the list to an interested party, such as an immediate family member or beneficiary of the estate. To request the firearms inventory, a form must be completed and submitted to the Surrogate’s Court. The Albany County Surrogate’s Court has advised that only around 10% of such requests are approved.
A federal background check is now required for a firearm to be transferred, even between two private individuals. The exception to this rule is a transfer between immediate family members. As most gun owners leave their firearms to immediate family members, the transfer can often be completed without a background check.
To transfer a pistol from the decedent to a beneficiary, the intended recipient must hold a valid pistol permit and add the pistol to their permit prior to the transfer. As there is no requirement to register most shotguns or rifles, it is easier to transfer long guns. As long as the long guns or rifles are safely maintained, they do not have to be turned over to the police for safekeeping and a background check is not needed for the transfer.
Antique firearms are treated a little differently. The definition of an antique firearm in Article 265 of the NY Penal Law typically refers to muzzle loading black powder firearms, but also applies to pistols or revolvers “that use fixed cartridges which are no longer available in the ordinary channels of commercial trade.” If the owner has no intention of using the firearms, muzzle loading pistols and revolvers do not need to be registered on a pistol permit. If the antique firearms are kept loaded or kept together with ammunition, they must be registered on a valid pistol permit.
Governor Andrew Cuomo described the law as the toughest gun control law in the United States, but passing firearms to your loved ones does not have to be problematic if you specifically address them when planning your estate. As always, continue to store your guns in a secure location. Maintain a list of all firearms in your possession; this will make things easier for your Executor after you pass away. To avoid extra hassle, consider leaving firearms to immediate family members only. If you are the owner of pistols, make sure your intended beneficiary holds a valid pistol permit, or have them apply for a pistol permit while you are still living to avoid any issues after your death. Another option is selling or transferring ownership of the firearms while you are still living.