Probate is the legal process of wrapping up the affairs of a deceased person and transferring his property to next of kin or via the instructions of his will. The process ensures that creditors of the deceased are paid, assets are accounted for, and title and assets are transferred to new owners.
This process is overseen by the state courts, and is normally relegated to the Probate Court, which is specifically set up to handle such proceedings. The Court will appoint a Personal Representative, commonly known as an Executor, to head up the administration of the estate.
Before assets can be divided, they must be accounted for, and the Court requires the Personal Representative to account for all property of the deceased via an Inventory and Appraisement. In South Carolina, the Inventory and Appraisement report is due from the Personal Representative 90 days after his appointment.
So where do firearms come into the probate process? Firearms are a form of personal property, and when owned directly by the deceased (i.e. not in a trust), they must pass through the probate process before being properly transferred to next of kin or via a will.
The SC Inventory and Appraisement form, Form #350ES, specifically addresses firearms in Schedule F – “Other Miscellaneous Assets Payable to Estate.” Here the Personal Representative is instructed to list tangible personal property such as “articles or collections having either artistic or intrinsic value, including coins, guns, artwork, jewelry, etc.”
So What Information Must be Listed?
Form #350ES simply requires a description of the property and the value of the property. On the face, it appears that simply describing firearms as a “Gun Collection” and listing the approximate value is enough to satisfy the Probate Court.
Unfortunately the disclosure may not end there. Any heir, other interested person, or the Probate Court on its own volition, may require the Personal Representative to conduct an appraisal of the collection complete with a valuation of each firearm. A written report of the appraisal and valuation would be filed with the Court. SC Code Ann. § 62-3-707. Such a report would include a description of the firearms, each’s value, and very likely serial numbers of the firearms.
Who Sees this Information?
A list of firearms, by make and model, regardless of whether serial numbers are listed or not, is significant information that many of my clients do not want to give out. Obviously, the Court, and any potential heirs or beneficiaries, will be able to see this information, but it will also become publicly available as a record in the Probate Court. Anyone could request a copy of the information from the Court or look it up at the Court.
Making a list of your firearms available to the public is not ideal. The information disclosure becomes more severe when you realize the record will also indicate who received the firearms. Unless your Personal Representative will be liquidating the firearms and passing along money instead, it is worthwhile to consider avoiding probate for your firearms.
How do I avoid Probate for my Firearms?
There are many ways to avoid probate, but our discussion will focus on mechanism fitting for the transfer of firearms and similar personal property.
The most obvious means to avoid disclosing firearms in Probate is not to own them. This means giving away your collection while still living. For some clients, this is a simple and ideal solution, but for many, their gun collection is a personal enjoyment that they are not ready to part with. (And some of us will face death unexpectedly and long before we have planned for it in this manner.)
The less obvious mechanism is the use of a trust. As discussed elsewhere, a trust is an entity unto itself, and firearms owned by the trust, though still controlled by you, are not included in the probate estate. Your passing does not end your trust and therefore it ‘lives’ through probate and separate and independently passes along your firearms. Further, the entire set up of the trust is the private affair of you and your beneficiaries. And if no income is accrued, there won’t even be a tax filing for the trust. When you desire privacy, a trust can be an ideal tool.
Death is inevitable. Probate though can be avoided if you wish to structure your business accordingly. If you would like to avoid or minimize your own probate, or if you need help serving as a Personal Representative for another, please reach out to us at R. K. Merting and ask Robert for help.