[UPDATE: For the last three years (since August 2016) I have not generally recommended the lifetime funding of gun trusts in California. Passage of AB 1292 in July 2019 has significantly enabled and clarified use of gun trusts — however, there are limits under the new law and significant issues remain such that I recommend the inclusion of special gun planning provisions in all major estate planning documents.]
For several years I have been doing my best to explain to the public here in California, including my fellow estate planning attorneys, that a California gun trust is not likely to be effective in transfering guns upon death. I only recommend gun trusts for creating a legacy of firearm training, and the gun trusts I set up are funded with guns after death. (I wish every gun owner would be serious about creating such a legacy for generations, but most gun owners have never experienced decent firearm training so they have no clue what I’m talking about; they just want to pass on the guns, that’s it.)
My colleagues here in California have seen my listserv posts on this subject and several firms have paid me to walk them through the relevant penal code provisions and I applaud them for their effort to understand this area, but the vast majority of California estate planning attorneys are content to remain blissfully ignorant. Probably because they don’t like guns in the first place.
Compounding this problem is that WealthCounsel, which is the nation’s leading network of estate planning attorneys partly because of the powerful drafting software it provides to members like me, has not made its documents (either its revocable living trust, or its GunDocx gun trust) friendly to California gun owners. WealthCounsel’s WealthDocx is otherwise a super drafting system, and the GunDocx component has a lot of potential. I’m working with its author on a few changes for California. Until those changes are made, however, it seems that there are a lot of California attorneys out there, including perhaps some of my fellow WealthCounsel members, who are churning out gun trusts without really knowing what they are doing.
I know this because of some of the calls I get. For example, one attorney down in San Diego called me to ask how much he should charge for a “gun trust” and after I explained to him that gun trusts are not likely to help with passing guns on death, and might even cause problems, he responded by asking me: “Well, IF YOU DID a gun trust, how much would you charge?” (The same attorney declined to pay me for a training session to learn the applicable law.)
The phrase “caveat emptor” should not apply when you hire an attorney because we have certain duties to the public, for example not misleading our clients. Obviously, caveat emptor applies with these attorneys! But i think most of the attorneys doing this simply don’t know about the penal code provisions governing these special assets.
I did get some traction recently at our annual WealthCounsel Symposium in Coronado. A respected presenter at our California Forum meeting acknowledged my method of passing guns through the will — I call it “The Jefferson Election” as it is flexible, like our Clayton Election planning.
I’m on our California forum docs committee and will keep proposing changes to WealthDocx. Until those changes are made, caveat emptor!
