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Transferring firearms following a death or disability
Illinois recently passed a comprehensive revision of the Illinois Trust Code, with im- portant new firearm ownership protection information:
Firearm ownership upon disability
With the new statute, disability is fraught with potential issues. Even if you currently possess an FOID card, you may become inel- igible to possess your firearms if you:
To avoid unintended consequences following a disabil- ity adjudication:
• Set up a revocable grantor living trust or gun trust now.
• Create a power of attorney as part of your living trust estate plan to authorize another person to manage your
affairs upon your disability without requiring court in- tervention.
Firearm transfers upon death
After a firearm owner dies, the executor or trustee must legal- ly transfer the firearms to his or her chosen beneficiaries, or, if there is no estate plan, to the surviving heirs at law.
So what do you do now? Start your estate plan. As an essen- tial part of that plan, determine the ownership of your firearms after your death. Your trustee can distribute them to a licensed dealer, or any chosen beneficiaries with a valid FOID card in the state in which they reside. If the beneficiary does not have an FOID card, the law provides for a sixty (60) day grace period. But do not put them, or your trustee, in that position. First, it will delay the distribution of your estate and be a burden on your beneficiary during an already difficult time. Secondly, during those 60 days, the statute does not provide an exemption for your trustee who has possession of the firearms, meaning the trustee is now subject to an immediate FOID requirement.
If firearms are an asset of the estate, the administrator will need to comply with federal, state and local ordinances regard- ing possession, storage, transportation and transfer of owner- ship. Federal firearms laws always apply to possession, trans- port and transfer, and state and local ordinances may have more rigorous requirements than federal regulations.
Finally, understanding recordkeeping requirements is cru- cial. In a person-to-person transfer of a firearm, the transferor has the responsibility of verifying the existence and validity of the transferee’s FOID card. The transferor must keep a record of the transfer for a minimum of 10 years, including the date of the transfer, the name and address of the transferee, and the serial number and description of the firearm. Nothing in this statute exempts estate administrators/trustees from this requirement. Living trusts
At the end of your life, or if you become incapacitated, any property or bank accounts — as well as firearms — in your name are at risk of probate.
• A will must be probated. The rule that is no one can legally sign your name. Therefore, at your death or incapacity, all assets in your name are subject to the full probate process, which averages 18 months and is costly.
• A living trust completely avoids probate.
• A living trust estate plan includes both health care and fi-
nancial power of attorney documents and a last will and testament for guardianship of minor children and to “pour over” any assets still in your name at your death, out of pro- bate.
• Your life insurance policies and deferred compensation ac- counts can name your living trust as beneficiary, subject to essential tax considerations.
Registration in the Benefits Plan for FOP members and their families is free. Visit www.fopbenefitsplan.com or call 866-729- 5454 for assistance with registering.
Tom Tuohy is the founder of Tuohy Law Offices and the FOP Ben- efits Plan. He has been a police lawyer for 37 years. His father was a CPD detective, and his grandfather was CPD Chief of Major Investigations. You can reach Tom at 312-559-8400.
TOM TUOHY
1. are prohibited from possessing a firearm un- der any state or federal law;
2. are addicted to narcotics;
3. have been a patient in a mental health facility in the past
five years;
4. are intellectually disabled;
5. have been adjudicated as a mentally disabled person;
6. have been involuntarily admitted into a mental health fa-
cility; or
7. have a psychological condition that poses a clear and pres-
ent danger to yourself, any other person or persons in the
community.
However, there is a difference between needing help to pay
bills and being mentally impaired to the point where posses- sion of a firearm violates the Gun Control Act.
A caretaker may face potential liability issues if a disabled person shoots someone, or if he or she commits suicide with a firearm in the home. Concerns about liability and safety must be balanced with the senior’s right to self-defense.
FOP
Benefits
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22 CHICAGO LODGE 7 ■ MARCH 2020