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Estate Planning and Firearms

Andrew Cousins

January 29, 2025


Americans love guns. In fact, we love guns so much that according to a 2017 study conducted by the Graduate Institute of International and Development Studies in Geneva, Switzerland, there were an estimated 1.2 guns privately owned in the United States for every one American citizen. This estimation is largely obsolete, as gun ownership skyrocketed in 2020 due to a variety of reasons. Licensed firearm dealers in 2020 sold over 20 million guns. Since 2020, millions of firearms have been sold each year.


For the purposes of this article, my use of the word firearm(s) only pertains to guns not regulated by the National Firearm Act (NFA). Weapons regulated by the NFA include machine guns, suppressors, short barrel rifles, explosive ordinances, and other weapons. Guns regulated by the NFA are only a tiny fraction of the guns owned by Americans. Almost all firearms owned by Oregonians are not regulated by the NFA. In the future I will write an article that deals with estate planning and weapons regulated by the NFA.


While gun ownership is protected by the Constitution of the United States, gun ownership and possession is regulated by both Federal and state law. In Oregon, all transfers of firearms may only occur after the person receiving possession of the firearm undergoes a background check performed by the Oregon State Police. Once the background check processes and the recipient is approved, they can then take possession of the firearm. There are a few exceptions to this rule, such as the transfer of firearms between family members. ORS166.435(4)(c).


The transfer of firearms can be an integral part of many people's estate plans. Many people would like to pass down their heirloom firearms as well as firearms that hold sentimental value, such as rifles used every year for hunting or guns that have been passed down over many generations. If someone is transferring a firearm to someone in their family, they can transfer the firearm without undergoing a background check (assuming the recipient is legally allowed to possess firearms). ORS166.435(4)(c). Three relevant statutes that govern who may possess a firearm are ORS 166.250, ORS 166.470, and 18 USC § 922(g). This article does not discuss who is legally allowed to possess firearms.


If a transfer of firearms occurs following the death of someone, there are several different legal requirements that come into play, depending on how the decedent's firearms are being transferred. Someone who violates the firearm transfer laws in Oregon is subject to criminal liability and can be charged with a crime. ORS 166.435(5). It is essential that people who transfer possession of firearms comply with both Oregon and Federal laws.


If the decedent's estate is being probated via a regular probate proceeding, the Personal Representative of the estate (defined in ORS 111.005) can transfer the firearms to the beneficiary of the decedent. If the beneficiary is a family member of the decedent, the Personal Representative can transfer the firearm without having a background check performed. ORS 166.435(4)(d). If the beneficiary is not a family member of the decedent, a background check must be performed prior to the Personal Representative transferring possession of the firearm.


When a decedent's estate is being probated via a simple estate probate proceeding, the executor of the estate is called a "claiming successor," and is not a Personal Representative of the estate. Any firearm transferred by a claiming successor to a beneficiary of an estate can only be transferred after the beneficiary passes a background check. It does not matter if the beneficiary was related to the decedent.


If the decedent had a revocable living trust, and the decedent transferred their firearms to the trust, the Trustee of the trust is the person responsible for distributing the firearms held by the revocable living trust. ORS 166.435 does not carve out a background check exception for Trustees like it does for Personal Representatives. Before the Trustee can transfer possession of the firearm, the beneficiary must pass a background check. This is required of all beneficiaries regardless if they were related to the Settlor of the trust.


The information discussed in this article is not a comprehensive list of laws and other relevant factors needed to be considered when transferring firearms. If you are interested in passing down your firearms as part of your estate plan, it is essential you consult with an attorney. Contact my office today to discuss how you can ensure that after your death your firearms will be legally transferred to the person(s) of your choice.

Nothing in this article should be construed as legal advice. No attorney-client relationship is formed by reading this article or visiting this site.

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The information on this site is for general informational purposes only. Anything stated on this site should not be taken as legal advice. Using this website does not create an attorney-client relationship.

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