This is the second in a two-part series on estate-planning attorney Dennis Brislawn’s creation of “gun trusts” to protect Second Amendment rights. The first article showed how Brislawn developed his “gun trust system” and began to market his innovative legal approach to complex state and federal firearms laws. This second article explains how Brislawn has taken his concept national, accommodating the needs of many different types of firearms owners.
NEW YORK – Once Dennis Brislawn, an estate-planning attorney in Bellevue, Washington, had developed the concept of using a “gun trust” to protect Second Amendment firearm rights, he resolved to take his model, called Gun Docx™, national.
“Once I had Version 1.0 of Gun Docx™ built, I visited local gun shops to see if they would work with me to educate gun owners about quality gun-trust planning,” Brislawn explained to WND in an interview.
“A few let me in the door and welcomed attorney involvement,” he said. “Several of my gun shop owners liked what I had but were concerned about cost, since a few were providing generic trusts for free or even charging for them. ‘How can you charge $500 for a complete gun trust? Some of my customers can’t afford to pay $500 for the gun trust, not on top of transfer fees and the National Firearms Act (NFA) firearm purchase.’”
As WND reported, Brislawn’s gun-trust system helps gun owners protect their rights amid complex laws and avoid the risk of criminal charges for incorrectly possessing and transferring firearms.
Attorneys were concerned about being able to provide a quality service for commodity prices. Brislawn explained that his response to the objection was to create options.
“We built an NFA-only, streamlined $97 version of a gun trust for somebody on a budget, like a young adult buying his or her first silencer,” he explained. “Then we created more versions for different gun owner goals and needs, all the way up to the ultra-wealthy gun owner having a multi-million dollar gun collection.”
Gun Docx: Silver and Gold versions
“Knowing gun owners, I guessed that someday I would run into some folks with multi-million dollar gun collections,” he mused. “Well, it happened, and I have helped plan for some pretty amazing gun collections in addition to modest ones. And every one of those gun owners values that collection personally, no matter what it is worth in dollars.
“The more gun trusts I created, the more I started hearing, ‘So, you’re the guy who creates gun trusts. I want to meet with you and talk about gun law,’” he said.
“By then, I had a whole system created with three levels of gun trusts modeled after marksmanship medals, with Bronze being the simplest version, and Silver and Gold versions having more planning choices and advanced planning options and features.”
Brislawn explained his logic in creating a multi-level structure.
“Given competing goals of producing valued legal services and quality documents under budgetary concerns, in some ways we elected to ‘commoditize’ what most attorneys consider ‘legal artwork,’” he explained.
“So, if you’re looking for a multi-state gun trust, the Gold Gun Trust is the ticket,” he explained. “If you’re planning for your grandchildren and your great-grandchildren that you haven’t met yet, then the Gold Gun Trust meets that need. If you want to build in some advanced features such as asset protection, then the Gold Gun Trust is part of a solution set that will include advanced estate planning and possibly LLC planning.”
So today, Brislawn stressed, Gun Docx has a robust menu of choices with different price points and features depending upon complexity, as well as the ability to dovetail with a client’s estate- and asset-protection planning.
“A truly comprehensive gun trust actually owns your weapons and all your ‘gun stuff,’ all the way down to your gun-cleaning kits,” he said. “It has language in it specific to state firearms and gun law concerns.”
Gun Docx™ in layman’s terms
Brislawn put the structure of Gun Docx into simple terms.
“It works like this,” he explained. “You, as ‘grantor,’ essentially own the trust, since you will be the ‘grantor’ setting up the gun trust with the ability to change it.
And, he said, you are a “trustee,” with “the right to administer and possess trust assets, as well as the ‘beneficiary,’ with the right to enjoy your trust assets.”
“Others can be named as trustees and/or beneficiaries, and you have to be careful here, as both federal and state law can introduce some issues that a trust must deal with, too,” he continued. “The gun trust is built around a conventional living trust in which we strip out everything that would be illegal or problematic under gun laws.”
The trust must be built so that it’s valid under state law, he stressed, noting there are some provisions in a normal living trust that don’t work.
“You can tell a client, for instance, ‘If it’s too much trouble to run your living trust, then you can just shut the living trust down and distribute everything.’ With a trust that owns a Title II or NFA firearm, such as a machine gun, that would be a horrible mistake. If you shut down your gun trust, you just killed off the lawful owner (person), with the unfortunate result that you suddenly personally possess contraband!”
He explained that for Title II firearms, such as NFA firearms that include a silencer, a short barrel rifle, a short barrel shotgun, a machine gun and two other categories of special firearms, the gun trust is the “person” that can possess that firearm, construed in legal terms.
“The gun trust has the legal right to possess these weapons to carry out its purpose for Title II firearms. But it can only do so through a person named as trustee,” he continued.
“The trustee for all practical purposes is the gun trust’s brain, arms, hands, legs and feet. All this is done for a beneficiary, a person with the right to ‘enjoy’ trust property. With trust-owned firearms, it is helpful to be both trustee and beneficiary so you can both possess and enjoy. To enjoy, somebody has to be with the firearm who has the power to possess.”
What are the rules?
What firearms can a gun trust possess?
“Any and all firearms that can be legally owned in a state,” Brislawn answered. “Both Title I weapons, including conventional handguns, rifles and shotguns, as well as Title II firearms that constitute six categories of NFA firearms.”
“The ATF agrees and said so most recently in public at the last NRA Convention,” he elaborated. “Trusts commonly own tangible personal property, including firearms in every state.”
“But there is a problem in ‘gun land,’” he warned, “and it has to do with definitions under different parts of the federal gun law and certain state laws.”
The definition of a firearm is different under Title I and Title II of the Gun Control Act, distinguishing conventional from NFA firearms.
To complicate matters further, he said, the definition of a person is different under Title I and Title II,.
“Under Title I, a trust is not a person, while under Title II a trust is a person. This is a problem for the background check system, the National Instant Criminal Background Check System used for Federal Firearms License (FFL) firearms transfers and increasingly required for private transfers in gun control states.”
Brislawn acknowledged that the distinctions in federal gun laws are often complicated and difficult for a layperson not trained in law to follow.
“A gun trust as a ‘person’ cannot directly go through a background check under Title I, with the result the gun trust cannot buy Title I weapons,” he pointed out. “You can’t do a background check on a person in their role as trustee or in the name of the gun trust for Title I firearms. It’s crazy, but a gun trust is a person under one part of the Gun Control Act, Title II (the NFA), but not under Title I.”
Brislawn stressed that because of these legal complications, he recommends non-lawyers should consider getting help with gun trusts from a competent lawyer using the Gun Docx™ system or something similar.
“Conventional firearms can be purchased by a trust where a background check is not required, and existing personal firearms can generally be transferred to trust by a written assignment or bill of sale just like any personal item would be to any trust,” he said, explaining how the legal complications of definitions under the federal gun laws can be navigated by a competent lawyer trained on the Gun Docx system.
“If state law requires a NICs background check for a conventional firearms transfer, then good luck, since federal law says a trust is not a person and a FFL cannot do the paperwork,” he said. “This is a real issue in my home state of Washington and it is brewing in several others.”
‘What a clumsy solution!’
Brislawn noted the ATF has had to develop a solution for a transfer of an NFA firearm to a gun trust, since a gun trust is a “person” under the definition in federal law.
“Remember, there is no place to put ‘trust’ or ‘trustee’ on a Form 4473 that is part of the background check when a named trustee goes to pick up a silencer at the gun dealer,” he said. “So ATF has instructed FFLs to do the background check on the person documented as a trustee who is picking up an NFA firearm. The trustee picking up the firearm must then sign a statement that he or she is acting as a fiduciary for the gun trust, which is the ‘real’ person for NFA purposes.
“Wow, what a clumsy solution!” he exclaimed.
Brislawn cautioned that formulating solutions to gun ownership and “sharing” firearms with a gun trust is not a task for novices, even if the novice has a legal degree.
“It illustrates the problems we have due to inconsistent definitions within and between federal and state law,” he continued. “Where I live in Washington, our newest gun control law is unclear whether a trust is a person, and even if it is, you cannot do a background check on a trustee or trust! I tried to do this at an FFL when purchasing a handgun and was turned down as I suspected I would be. The FFL said a background check on a transfer of a conventional firearm to a trust ‘could not be done’ using NICs.”
He explained that gun trusts are useful in situations where people who have never owned a firearm end up owning one, for instance, as part of an inheritance willed to them by a deceased gun owner.
“Most people don’t have experience with conventional firearms, let alone NFA firearms,” he pointed out. “In giving seminars about gun trusts, I am frequently confronted by gun owners who realize that many of the people in their family and their close circle of friends do not understand guns or gun laws.
Gun Docx: FAQs
“I get asked, ‘If you get sick or die, would these people even have a clue what to do in my state with your guns?’
“Obviously, the answer for many people is, ‘No,’” he answered, “and the danger is that uninformed heirs who get guns may want to take possession of those guns to sell them off without considering the legal consequences of doing so.”
Brislawn said a gun owner with a well-designed gun trust can anticipate these problems and devise solutions, anticipating that inheritors of their weapons need to be protected under the law.
“And, by the way, I bet you want these people to sell your guns last if it came to that,” he continued. “I often hear ‘If somebody has to save my life, I would want them to cash out my investments or IRA first, because I want my buddies to get my cool guns.’
“So, provisions in a normal trust that work for stocks and bonds, or for house, your cat, dog as well as your couch and TV, don’t work for guns for lots of reasons.”
He said gun ownership creates pragmatic and legal issues that are different than for other assets like bank accounts or stocks.
“Let’s talk money. Most gun trusts are not liquid, since they own guns; they may not own cash or a meaningful bank account. How do you maintain or ship firearms without selling them off?”
Brislawn said a trust could be made for a beneficiary of a small life insurance policy so the trustee would have funds to protect and transfer the collection.
“Next, it’s important to consider how a trustee could carry out your instructions to pass on guns. Remember it’s designed to hold a personally precious firearm or two or even more,” he said.
“If somebody steps in to help you due to sickness or death, do they know firearms law?” he asked. “How do they learn it to avoid problems with possession, i.e., access to them by others, or transfer, such as a gift, loan or sale?”
He warned that the possession and transfer of a firearm, if done wrong, can land a person in jail, without firing a round.
“Look at the stories out of New York, New Jersey and elsewhere where gun owners voluntarily reported that they accidentally brought a gun into the state and were arrested. It is very easy in parts of our country to accidentally violate possession or transfer laws.” He said.
“One man came in and told me: ‘I have a valuable gun collection and I’m not sure what to do with it,’” he recalled.
“He was a humble man but he was very proud of his gun collection and he wanted to leave the collection to his son,” he continued. “I happened to ask him that day, ‘Tell me about your family. Are there criminal or substance abuse issues with your family?’ He was immediately crestfallen and ashamed to admit that his son had a criminal record that would presently prohibit firearms possession.”
Brislawn said they discussed restoration of gun rights but told him that it would be dangerous for his son to inherit the guns, because the inheritance might result in a felony.z’
“Instead we developed a plan that left the son an income with a legacy gift to a firearms charity,” he said.
“His gun trust established a charitable gift annuity at death,” Brislawn made clear. “The firearms would be transferred to the NRA, who could cost effectively sell the firearms and maximize the value of the annuity which would then pay income to his son for life. At the son’s death, the remainder would be a charitable gift to an NRA gun safety program for kids.”
He said that there were other options, such as appointing some other family member or friend as trustee to take possession of the guns and hold them or to sell them off and hand over the money.
“I want people to talk about gun law and what it means to gun owners and non-gun owners alike,” Brislawn stressed. “There’s too much rhetoric and bad law being created, driven by fear and misinformation, and I got thinking that something should be done, as a community of gun owners, to deal with this.”
Gun law community
Brislawn explained his decision to create GunLawCommunity.com.
“My friend Blaine Millet and I created Gun Law Community for the general public and anybody interested in discussing and considering gun law and how it does and should work in America,” he said. “We connect gun owners and professionals in the industry with lawyers who are all interested in this.
“We believe that we lawyers must lead and reinforce the idea that we are the voice of reason and lawfulness within the gun-owner community,” he continued. “My colleagues and I want to be visible as people to turn to when it comes to gun law and that somebody with legal training has your back. We are not ‘gun-owner whack jobs.’ We are people who are totally concerned with lawful use of firearms.”
Brislawn explained attorneys who use Gun Doc, many who are members of Gun Law Community, help gun owners to create and use gun trusts properly.
“Gun Law Community as a website is not designed to give legal advice,” he said. “It is designed to explain gun-law concepts, to trigger thought and comment, and to help interested gun owners and prospective gun owners to get in touch with a qualified legal adviser in their state.”
“As an attorney licensed to practice in three states, before the federal bar, who has appeared before many different judges, commissioners and agencies, including the IRS, I have represented thousands of people for over 26 some years,” Brislawn said in conclusion. “When it comes to firearms, the risk of getting bad legal advice is not just some fine or loss of money, or even confiscation of the firearm. It might mean the loss of your freedom via jail time and the temporary or permanent loss of the right to possess any and all firearms.”
“The majority of us want to retain and protect our Second Amendment right to keep and bear arms, but with gun ownership comes gun accountability under the law,” he stressed. “Our Supreme Court has stated that our constitutional rights do have certain limits, especially where mine affect yours. I for one want to help all gun owners to become thought leaders in developing what it really means to be a gun owner in this country.”
He said there are many good resources to help gun owners to understand their rights, duties and obligations, and to get trained and manage risk in using firearms.
Among them, he said, are the NRA, the Second Amendment Foundation, the Armed Citizens’ Legal Defense Network and the U.S. Concealed Carry Association
“You can learn to shoot with a competent instructor, but having your own attorney helps you protect and preserve everything you own and love, including your firearms. You can find one in the state and community where you live,” he said.
“My takeaway is that we gun owners must work together, as a community, and get a new message out. We are accountable, reasonable and dependable. We protect life. We believe in the law and doing things the right way.”
Brislawn is a partner in the Private Client Law Group at Oseran Hahn, P.S. in Bellevue, Washington. He is licensed to practice in Washington, Oregon and Alaska, admitted to the federal courts and practices before the IRS. With more than 26 years of legal experience, he is nationally recognized as one of WealthCounsel, LLC’s legal systems architects and most recently as the creator of the Gun Docx Trust system.
He is a founding member of WealthCounsel, LLC, where he has authored or coauthored numerous systems and professional presentations such as “Gun Trusts, How Not to Shoot Yourself in the Foot”; “Drafting Gun Trusts” (2011-2015 WealthCounsel, National Business Institute, MyLawCLE, Lorman, state bars and attorney associations); “Probate: Beyond the Basics” (2007 National Business Institute, Inc.); “Asset Protection Strategies for Washington Physicians” (2006 National Business Institute, Inc.); and is a coauthor of WealthCounsel’s “Settlement Counsel, Family Limited Partnership, LLC, and Living Trust Compendia.”
He is currently a team member working with Washington’s Conservation Commission and Office of Farmland Preservation and the Washington State Bar developing programs focused on helping specialty crop growers and family farms with succession planning.
Brislawn is a recipient of the Martindale Hubbell AV Peer Review Rating, ranking him at the top of his profession for ethical standards and professional excellence. He rated a “10,” the highest rating on AVVO, and has been recognized for excellence in a number of publications.
He graduated from Gonzaga University with honors and from the University of Washington School Of Law following his active duty service in the U.S. Army. Brislawn received several U.S. and foreign decorations and awards while in the service, notably Airborne-Ranger, French Army Commando and Expert Infantryman qualifications.