By Paula Manderfield
Fraser Trebilcock
Did your grandfather leave you his Colt Army Revolver in his will? Are you the personal representative of an estate and have to deal with disposition of firearms? If so, than Senate Bill 225 should help. It was signed by the governor and took effect February 22, 2016.
The bill will hopefully make it easier for the person inheriting the pistol and for the person disposing of the decedent's estate, and provide guidance to local law enforcement agencies. SB 225 amends the Firearms Statute, MCL 28.422, to add a provision dealing with the transfer of ownership of a pistol by inheritance. The intent is to simplify the process of how to transfer ownership of an inherited pistol, including a pistol that was never registered, as is often the case with older guns.
Old Law
Section 2, paragraph (1) of MCL 28.422 provides that a person shall not purchase, carry, possess, or transport a pistol in this state without having first obtained a license for the pistol as prescribed in this section and sets forth the requirements for obtaining a pistol. A personal representative was required to apply for and obtain a pistol license and register each pistol that he or she takes possession of for the sole purpose of testamentary or intestate disposition.
It also required that before inherited pistols could be transferred to a devisee under a will, a license to purchase had to be approved by the commissioner or chief of police, sheriff, or authorized deputy, and signed by the personal representative of the estate or by the next of kin having authority to dispose of the pistol.
The amendment deletes this cumbersome provision.
New Law
The statute as amended states: “This section does not prevent the transfer of ownership of pistols to an heir or devisee, whether by testamentary bequest or by the laws of intestacy regardless of whether the pistol is registered with this State”. “An individual who has inherited a pistol shall obtain a license as required in this section within 30 days of taking physical possession of the pistol" (emphasis added). The license may be signed by a next of kin of the decedent or the person authorized to dispose of property under the estates and protected individuals code, MCL700.1101 to 700.8206.
The amendment allows for pistols that have never been registered to pass by inheritance, which may be the case with antique or sentimental guns. The responsibility is then on the heir or devisee to apply for and obtain a license within 30 days after taking possession.
If the heir or devisee is not qualified for a license under Section 2, he or she may direct the decedent's next of kin or the person authorized to dispose of the estate's property to dispose of the pistol in any manner that is lawful and the heir or devisee considers appropriate. MCL 28.422(3)(a-h) contains the requirements a person must meet in order to be qualified for a pistol license; these requirements have not changed. A few of the requirements to obtain a pistol license include being 18 years of age or older, not being convicted of certain felonies, and not being subject to a court order under the mental health code.
Section two, paragraph (8), further provides that "A law enforcement agency may not seize or confiscate a pistol being transferred by testamentary bequest or the laws of intestacy unless the heir, or devisee does not qualify for obtaining a license under this section and the next of kin or person authorized to dispose of property under the estates and protected individuals code, MCL 700.1101 to 700.8206, is unable to retain his or her temporary possession of the pistol or find alternative lawful storage".
In a case where a pistol is confiscated under section two and the heir or devisee is not qualified to obtain a license, the heir or devisee retains an ownership interest in the pistol. The amendment provides that within 30 days of being notified of the seizure, the heir or devisee may file with the appropriate court asking the court to direct the law enforcement agency to lawfully transfer or otherwise dispose of the pistol. During this time period, law enforcement shall not destroy, sell or use the pistol until after 30 days from notifying of the seizure and no legal action having been filed in any court.
While this amendment should help streamline the process for the personal representative administering an estate, there are several issues that are not being addressed. Should the personal representative or person with authority to dispose of property determine before transfer of the pistol if the heir or devisee is qualified to obtain a pistol license? Does Probate or Circuit Court have jurisdiction? The statute is silent on both of these. It is also silent on how long the personal representative or person authorized to dispose of property may retain possession of possibly an unregistered pistol. One would assume it would be for the ordinary course of administering an estate, but again, the statute is silent.
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Paula J. Manderfield spent 20 years as a Circuit and District Court Judge, in addition to ten years in private practice, before joining Fraser Trebilcock as a Shareholder in 2013.
Her judicial experience give her clients a distinct advantage, particularly those needing mediation, or dealing with civil or criminal litigation. Paula has been a registered nurse for more than 40 years, giving her a unique perspective for handling cases involving health care issues. She serves on the Board of Blue Care Network , the Board of Visitors for Michigan State University's College of Nursing, and holds positions on various legal committees with the State Bar of Michigan and other prominent legal associations.
