Introduction
Inheriting a firearm in California is a process governed by strict state laws, requiring careful compliance to ensure legality and safety. This article provides a step-by-step guide to transferring a firearm through inheritance, an operation of law transfer, and clarifies the distinction between operation of law transfers and intrafamilial transfers. It also highlights how The Davis Law Firm, led by attorney Jason Davis, can assist in navigating this complex process.
Definitions and Distinctions
Operation of Law Transfer
An operation of law transfer occurs when a firearm is transferred to an heir upon the death of the owner, as part of the estate distribution. According to California Penal Code section 27920, an operation of law transfer is defined as:
“The infrequent transfer of a firearm that is not an assault weapon by gift, bequest, intestate succession, or other means from one individual to another, provided that the person receiving the firearm is 18 years of age or older and is not prohibited by state or federal law from possessing a firearm.”
This applies to inheritances through a will (bequest) or intestate succession (when there is no will), and it is exempt from the requirement to use a licensed firearms dealer (FFL) under specific conditions, such as the recipient being eligible to possess firearms.
Intrafamilial Firearm Transaction
An intrafamilial firearm transaction refers to the transfer of a firearm between immediate family members, whether by gift, sale, or other means, during the lifetime of the transferor. California Penal Code section 27875 defines it as:
“The transfer of a firearm between a person and his or her parent, grandparent, spouse, registered domestic partner, or adult child or grandchild, provided that the person receiving the firearm is 18 years of age or older and is not prohibited by state or federal law from possessing a firearm.”
This transaction is also exempt from FFL involvement but is distinct because it occurs between living individuals and is not tied to estate distribution.
Key Differences
- Timing and Context: Operation of law transfers occur upon the death of the firearm owner as part of inheritance or via the terms of a trust or certain other means, while intrafamilial transfers happen during the transferor’s lifetime.
- Scope of Relationship: Operation of law transfers may involve any eligible heir (not necessarily immediate family), whereas intrafamilial transfers are strictly limited to immediate family members (parent, grandparent, spouse, domestic partner, adult child, or grandchild).
- Purpose: Operation of law transfers are tied to estate settlement (e.g., through a will or intestate succession), while intrafamilial transfers can be for any purpose, such as sale.
Step-by-Step Process for Transferring a Firearm via Inheritance (Operation of Law)
- Determine Eligibility for Exemption:
- Confirm the transfer qualifies as an operation of law (e.g., through a will or intestate succession).
- Ensure the recipient is at least 18 years old and not prohibited from possessing firearms under state or federal law (e.g., no felony convictions, restraining orders, or mental health prohibitions). Prohibited categories are listed in the California Department of Justice’s Firearm Prohibiting Categories.
- Verify the firearm is not an assault weapon, as these cannot be transferred via inheritance.
- Obtain a Firearm Safety Certificate (FSC):
- The recipient must possess a valid FSC before taking possession of the firearm. For handguns, an unexpired Handgun Safety Certificate may suffice.
- The FSC ensures the recipient is trained in firearm safety, a requirement for legal ownership in California.
- Transfer Possession:
- The executor or administrator of the estate transfers the firearm to the eligible heir once the FSC and eligibility are confirmed. This step does not require an FFL for operation of law transfers meeting exemption criteria.
- File the Operation of Law Report:
- Within 30 days of taking possession, the recipient must submit the Report of Operation of Law or Intra-Familial Firearm Transaction (Form BOF 4544A) to the California Department of Justice. The form, available at Form BOF 4544A, requires:
- A $19 processing fee (check or money order).
- A copy of the recipient’s California driver’s license or ID card.
- Proof of lawful presence if “FEDERAL LIMITS APPLY” (e.g., U.S. passport, certified birth certificate).
- Certified documents for name changes (if necessary, e.g., marriage certificate).
- Military personnel must include permanent duty station orders indicating a California station.
- The form cannot be used to report assault weapons, and additional forms are needed for more than two firearms.
- Electronic submission is available via the California Firearms Application Reporting System (CFARS).
- Handle Special Cases:
- Assault Weapons: Per Penal Code sections 30510–30530, assault weapons cannot be inherited. Within 90 days, they must be removed from California, sold to an FFL, rendered non-assault weapons, rendered inoperable, or turned over to law enforcement, with ownership documents destroyed if surrendered.
- Non-Exempt Transfers:
- If the heir is not eligible for an operation of law exemption, the transfer must go through an FFL, involving a background check, 10-day waiting period, and registration, or be subject to another exempt transfer process.
Legal and Safety Considerations
Failure to comply with the 30-day reporting requirement or other regulations can result in fines, misdemeanor charges, or jail time. Executors and trustees should secure firearms immediately after the owner’s death and consult legal experts to avoid liability, especially for complex cases involving “assault weapons” and National Firearms Act (NFA) Title II firearms (e.g., short barrel firearms, machine guns, suppressors etc.).
How The Davis Law Firm Can Help
Navigating the legal complexities of transferring a firearm via inheritance in California can be daunting, especially with the nuances of operation of law transfers, assault weapon restrictions, and antique firearm regulations. The Davis Law Firm, led by experienced attorney Jason Davis, specializes in firearms law and offers tailored guidance to ensure compliance and peace of mind.
- Expert Guidance: Jason Davis provides personalized advice on eligibility, documentation, and compliance with California’s firearm laws, minimizing the risk of legal issues.
- Streamlined Process: The firm assists with completing and submitting Form BOF 4544A, ensuring all required documents are accurate and timely.
- Specialized Knowledge: For complex cases, such as assault weapons or non-exempt transfers, The Davis Law Firm offers strategic solutions to meet legal requirements.
- Estate Planning Support: The firm can work with your existing estate planner to help structure your estate to facilitate smooth firearm transfers, avoiding pitfalls for your heirs.
Don’t risk costly mistakes when inheriting a firearm. Contact The Davis Law Firm today for expert legal assistance. Visit www.CalGunLawyers.com, call (866) 545-GUNS, or e-mail [email protected] to schedule a consultation with Jason Davis and ensure your firearm transfer is handled with precision and care.
