May 20, 2016

An estate trustee is tasked with disposing of the assets of an estate. A trickier situation arises when the deceased owned firearms. Strict rules govern the ownership and disposal of firearms in Canada, and trustees must take care to ensure they do not inadvertently break the law (and take necessary safety precautions).

The disposition of firearms is governed by both federal and provincial law. The federal Firearms Act and Criminal Code govern general issues of gun ownership and transfer in Canada, while provincial law deals with the transportation of firearms and the role of the executor.

The first thing an estate trustee needs to do is to determine whether the deceased’s guns are restricted, non-restricted firearms, or prohibited firearms. The definitions of these categories are provided in section 84(1) of the Criminal Code. A criminal lawyer, or other expert, may be required to determine the firearm type.

The executor should also determine whether the deceased had the legal right to possess the firearms. If the deceased had a Possession and Acquisition License (PAL), the PAL must be returned to the RCMP. However, if the deceased did not have the appropriate license, then the deceased likely illegally possessed the firearm. This puts the estate trustee at risk of penalties, unless he or she acts quickly to comply with the law. In this situation, a criminal lawyer may need to be consulted.

In most circumstances, an estate trustee has the same authority as the deceased to take possession of a firearm, even if the estate trustee is not personally licensed to possess firearms. The estate trustee must fill out a Declaration of Authority to Act on Behalf of an Estate form (available here from the RCMP’s website) and provide a copy of the death certificate, letters of probate, or a document from a police department or coroner to the RCMP Canadian Firearms Program. Filling out the declaration provides the added benefit of informing the estate trustee whether or not the firearm was legally owned.

A firearm must always be properly stored and secured, as required under the Firearms Act. The estate trustee may then possess the firearm for a reasonable amount of time while the estate is being administered. If the estate trustee has any concerns about the safety of the firearm, local police should be contacted.

Next, the estate trustee may be able to transfer a firearm to a beneficiary or sell it. If the estate trustee is transferring a firearm to a beneficiary, he or she must ensure that the new owner is eligible to possess the weapon, including having a PAL. The estate trustee must ensure that the recipient does not have a “a mental illness that makes it desirable, in the interests of the safety of that individual or any other person, that the individual not possess a firearm.” Similarly, an estate trustee may not transfer the weapon if there is reason to believe that the recipient may be impaired by drugs or alcohol. Some prohibited weapons can be transferred directly to a close family member of the deceased in certain circumstances.

If the estate trustee decides to sell the firearm, a licensed individual may purchase the firearm through an official transfer process. The estate trustee also has the option of contacting local police to surrender the weapon, or have a gunsmith permanently deactivate the weapon so that it no longer meets the definition of a firearm, thereby exempting it from the requirements of the Firearms Act.