NC Estates and the Transfer of Firearms: 5 Key Questions for Personal Representative

Personal representatives (PR’s) frequently itemize firearms when determining the assets of a probate estate. Often times, a last will and testament may specifically transfer a firearm (or cache of firearms) to an intended beneficiary. In other situations, firearms might be part of the tangible personal property of the deceased’s residuary estate. Before transferring a firearm to any intended beneficiary, PR’s should contemplate several variables when assessing the disposition of firearms.

1. What type of firearm is it?

Firearm types may range from pistols and handguns to rifles, shotguns and antique long-barrel guns. The General Statues of North Carolina define a firearm as “a handgun, shotgun, or rifle, which expels a projective by action of explosion.” NCGS 14-409-93.

2. What title considerations are inherent with each firearm?

Handguns (pistols) and long barrel guns have different legal treatment in regard to titling and ownership. In North Carolina, a purchase permit and concealed carry permit should be obtained before owning and carrying any handgun or pistol. Long barrel guns, which might include rifles, shotguns and muskets are generally owned without this type of permitting.

3. How is the firearm titled after the decedent’s death?

Upon the death of the decedent, the titling and the right of possession of a firearm is vested in the decedents heirs, but “upon the appointment and qualification of a personal representative or collector, the heirs shall be divested of such title and right of possession which shall be vested in the personal representative or collector relating back to the time of the decedent’s death for purposes of administering the estate of the decedent.” NCGS 28A-15-2(a)

4. How might a PR transfer a firearm after a decedent’s death?

Although title is vested in PR’s after the decedent’s death, North Carolina law can be contradictory on the proper method for transfer of ownership to am intended beneficiary. NCGS 14-402(a) provides that “it is unlawful for any person, firm of corporation in this State to sell, give away, or transfer, or to purchase or receive, at any place within this State from any other place within or without the State any pistol unless (i)…a permit is first obtained or….(ii)…unless a valid North Carolina concealed handgun permit is held. As a matter of legal application, the North Carolina Department of Justice has never required a PR to obtain a handgun purchase permit before taking possession of an estate-transferred firearm. However, a PR must inquire as to whether the beneficiary has received either (i) a valid handgun purchase permit or (ii) proof of a NC concealed handgun permit before distributing a handgun.

5. What if a firearm is specifically bequeathed to a minor beneficiary?

PR’s should be mindful that NCGS 14-269.7 contains several prohibitions on handguns for minors. “Minor” in this case is defined by any person less than 18 years of age. There are caveats to this prohibition, which include educational, recreational and hunting exceptions. However, a North Carolina County Sheriff would need to issue a minor a handgun purchase permit for one or more of the statutory caveats. Otherwise, willful and intentional possession of a handgun by a minor is a class 1 misdemeanor.