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Candychikita
11-04-2014, 12:12 PM
Slogging through a wills and estates course. I have questions. (Always)

What happens to firearms in an estate when the executor doesn't have a PAL?

All of the deceased's estate gets transferred to the executor, and then dispensed to the beneficiaries. I haven't seen any clauses about someone being denied the position of executor because they don't have a PAL...but that would make an executor of someone's estate a criminal (on paper) if it included any firearms? What about 12.x firearms?

Anyone have any experience in this? Acting as executor shouldn't take too terribly long, couple of months, but ... that's a couple of months where someone is ...a paper criminal? It would take less time to resolve the estate matters than to get your license?

awndray
11-04-2014, 12:20 PM
I've been asking myself that same question, but haven't taken the time to look into it. I'm interested in what you come up with.

arancio
11-04-2014, 12:34 PM
https://nfa.ca/resource-items/information-executors-regarding-firearms

kennymo
11-04-2014, 12:47 PM
Criminal Code section [CC s.] 91(4)(d) authorizes the executor of an estate to take possession of any firearm (including a prohibited or restricted firearm). The executor can possess it until he "with reasonable despatch, lawfully disposes thereof or obtains a firearms acquisition certificate under which he could lawfully have acquired the firearm." CC s. 92(4)(b) is the same provision, and operates in the same manner.

That's what I've been told before as well.

sallen
11-04-2014, 12:53 PM
The above information is correct, the executor can take possession without a license. One of the other interesting tidbits that I’ve learned over the years is that the executor can also move a restricted firearm without an ATT. Apparently the property law supersedes the transport laws. I found this out a couple of years ago when I received a restricted firearm from an estate. We where going through all sorts of hoops with respect to the transfer, ATT etc., so that I could take possession, and then I found out that the executor could have just dropped it off prior to the transfer.

Candychikita
11-04-2014, 01:01 PM
Shucks. I was wondering if this is how to get extra people their 12.x licenses...writing Wills with them as the executor, the executor applying for their 12.x in advance of acting as executor...then writing another Will with another person as executor, and so on.

Interesting to know.

Thank you :D

Candychikita
11-04-2014, 01:05 PM
Adding that link's text here, just for ease of reading:


Information for Executors regarding firearms
Date:
Thursday, February 17, 2005
Qestion: Myself and my wife are going to have our wills set up through our lawyer, and I want to know how we should handle the firearms. I have an FAC, as well as several long guns, plus some registered (to myself) handguns.

What section of law should I tell my lawyer to refer to so that if I died, and my wife is the executor of my will, she could maintain control/ownership of my property? I am concerned that the gov't would try to take my firearms away from her.

NFA: Criminal Code section [CC s.] 91(4)(d) authorizes the executor of an estate to take possession of any firearm (including a prohibited or restricted firearm). The executor can possess it until he "with reasonable despatch, lawfully disposes thereof or obtains a firearms acquisition certificate under which he could lawfully have acquired the firearm." CC s. 92(4)(b) is the same provision, and operates in the same manner.

Can she acquire them without an FAC (as executor)? Can the restricted ones be registered to both of us?

NFA: Yes, she can acquire without an FAC or licence if she is the executor. Firearms cannot be registered to two individuals on one registration certificate, unless they were registered to two or more individuals on one registration certificate on 01 Dec 1998. Firearms can be transferred from one individual to another, after the first has his or her registration certificate, without transfer of ownership. If ownership is not transferred, then the old registration certificate is not automatically cancelled, and it remains valid -- at the same time the new registration certificate is also valid.

If something happened to both of us, can I will some of them to the NFA as a donation?

NFA: Certainly. They then go into the hands of the executor, until a legal transfer can be arranged.

Thanks in advance for your info. I really like your articles in PointBlank, and find your comments to be very informative. (I just wish I could remember what you said regarding wills, executors, and firearms !!)

NFA: Worst case: If you own an illegal, unregistered full automatic machine gun, your executor can legally take possession of it, and legally take it to a gunsmith for alteration into a deactivated firearm without getting an Authorization to Transport. (That is because it is legally in his/her possession, and because no such Authorization can legally be issued.) The executor must stay with the firearm until it is deactivated, because the gunsmith cannot legally take possession of it -- so it must remain, at all times until deactivated, in the possession of the executor.

Here is a document that you should print out and clip to your will. It is specifically designed to be given to a police officer who thinks that he is authorized to seize firearms from the executor of a will:

National Firearms Association

Law Enforcement Update

October 2000 National Firearms Association

INHERITANCE AND TODAY'S LAWS

You have the unfortunate duty of telling a woman that her husband was killed in a hunting accident. Obviously, the man possessed firearms. What does the law say must happen to the firearm the man was carrying, and any other firearms he owned, upon his death?

The phrase, "by operation of law", means the automatic transfer of legal possession from the deceased to the executor of his estate, as a part of the estate, at the moment of death.

This will help you to understand what you should and should not do:

Firearms Act section [FA s.] 112(1) says, ".. every person.. who...possesses [any unrestricted firearm] without being the holder of a registration certificate [covering it is guilty of an offence]..."

But -- FA s. 112(2) says, "(2) Subsection (1) does not apply to...(b) a person who comes into possession of a firearm by operation of law..." (as an executor does).

CC S. 91(1) says, "...every person...who possesses [any] firearm [is guilty of an offence] unless the person is the holder of (a) a licence [covering it]...and (b) a registration certificate [covering it]..."

And CC S. 91 (2) says, "...every person...who possesses a prohibited weapon, a restricted weapon, a prohibited device, or any prohibited ammunition [is guilty of an offence] unless the person is the holder of a licence [covering it]..."

But -- CC s.91 (4)(b) says, "Subsections (1) and (2) do not apply to (b) a person who comes into possession of a firearm, a prohibited weapon, a restricted weapon, a prohibited device or any prohibited ammunition by operation of law..."

CC s. 92(1), 92(2), and 92(4)(b) say much the same thing, and cover the situation where the accused does know the law, while CC s. 91 covers situations where the accused may not know what the law requires.The law set forth in C-68 is crystal clear.

Any firearm, prohibited weapon, restricted weapon, prohibited device, or prohibited ammunition that passes into the hands of an executor is legal, and possession by that executor is legal -- for a "reasonable period". All firearms and any of the other items listed held by the deceased -- legally or illegally -- become [if necessary, and temporarily] legal as they pass into the hands of the executor at the moment of death. The executor has broad exemptions granted to him by the law in order to let him settle the estate in an orderly manner, and with a minimum of firearms control system problems.

Law enforcement officers should, therefore, be very cautious about seizing firearms (and other listed items) that are involved in an inheritance process. There can be claims for damage due to poor handling or poor storage, as well as complaints of illegal seizure.The exemptions granted by FA 5. 112(2)(b), CC s. 91(4)(b) and CC s. 92(4)(b) are very broad. Even an obviously illegal, unregistered full automatic submachine gun, a sawed-off shotgun, or a FA s. 12(6) prohibited handgun temporarily becomes perfectly legal, temporarily. That happens when the death of its possessor passes it, automatically, into the possession of the executor of the estate -- who needs no licence or registration certificate to be in possession of it.

If the deceased dies in possession of a "prohibited firearm" described in FA s. 12(6), that firearm can be passed on to the heir if the conditions set out in FA s. 12(7) are met.

If the deceased died in possession of a "prohibited firearm" that no one but a museum can have, the executor may legally transport it without an Authorization To Transport (ATT) -- say, to a gunsmith for deactivation. (The executor must stay with it while it is deactivated, so that it is never illegally possessed by the gunsmith.) Once deactivated, it is still an asset of the estate, but it is no longer a firearm under the CC s. 2 definition of "firearm".

The statement that an executor does not need an ATT requires explanation, as Parliament set up that exemption in two different ways, both having the same purpose:

CC s. 93 criminalizes only "the holder of an authorization or a licence under which the person may possess a firearm, a prohibited weapon, a restricted weapon, a prohibited device or prohibited ammunition" -- if that person has the item at a forbidden location. An executor is not "the holder of an authorization or a licence under which the person may possess" the item. He or she is merely the agent for the real possessor -- the estate. He or she has temporary possession only under the exemption granted to executors, so this section does not apply to an executor and cannot be used to charge an executor.

CC s. 94(4) provides an exemption to a CC s. 94(1) charge against an executor who is actually transporting such an item, and for anyone else who is in a motor vehicle with such an executor. That confirms that it was Parliament's intent to exempt an executor from ATT considerations, as well as licence and registration certificate considerations.

However, the Storage, Display, Transportation and Handling of Firearms by Individuals Regulations apparently do apply to an executor, and must be obeyed by an executor.

If you have questions on this, or any other issue regarding firearms, the National Firearms Association would be pleased to answer them for you.

Please call us at (780)439-1394

blacksmithden
11-04-2014, 02:15 PM
Just so everyone knows....a licensed firearms business can take possession of and transport any firearm "on a consignment basis" for you for the purposes of selling it for you. In other words, when grandpa passes away and gun hating grandma wants the guns out of the house RIGHT NOW....even if you cant take possession of them 12(6)....whatever....for gods sake, dont let her call the police to come and pick them up without contacting me (or whatever gun shop) first !!!!! Theyre still worth money, and theres no time limit on how long we can hold tbem for.

harbl_the_cat
11-06-2014, 01:21 PM
More interesting are the death tax ramifications on transfer of firearms to a beneficiary.

**EDIT - I need to research death tax more thoroughly, but I think my conclusion still stands.

**EDIT with research - guns aren't generally considered capital assets unless they are used for a business, so I'd assume there's no tax liability. Still, as the executor should resolve all other tax issues for an estate, if I wanted my inheritor/benefactors to have my guns, I'd have to trust the executor won't sell them to pay off the death tax on my estates behalf.

Conclusion: give your beneficiaries your guns (and everything else you actually own) before you die - because odds are your guns will be one of the first things your executor (or inheritor) sells to pay for the lump of flesh the government gouges from your dead corpse for the privilege of dying as one of their citizens.

Kind of funny - spend your whole life "working" and "earning," and by the time you die, the government takes most of it away.

Candychikita
11-06-2014, 01:43 PM
Hmm. I think you may be misinformed there. When you die, you have one final tax return of what you owe to the government (basically your year's tax season cut short by your untimely death)

http://turbotax.intuit.ca/tax-resources/inheritance-tax.jsp

But. If you have investments, the government wants their cut of the capital gains. That is supposed to be avoided by leaving your investments directly to a beneficiary vs needing the estate to cash out your investments (incurring capital gains, that the government wants their taxes on) If you leave them directly to a beneficiary it gets rolled into their accounts, and the taxes associated with it are charged when they withdraw it (or when they die, which can be avoided by rolling it down the line by leaving directly to a beneficiary) Same as transferring RRSPs in a divorce settlement to an ex spouse is not taxed, but if you cash them out and then pay them to the spouse there is.

No capital gains on a principal residence, and any non registered investment you will have capital gains if it appreciated...50% of that increase is what is taxable. It's not such a big boogeyman. Your firearms collection doesn't appreciate in value...but it doesn't decrease in value either. They need to know the value of the assets you have just in case you need to have something liquidated to pay off the massive debt you've incurred...not to tax you to ...death BAHAHAHAH I KILL MYSELF BAHAHAHAH double pun right there

I haven't done a simulation yet on multiple investments as part of an estate, but this is your average person's estate.

Candychikita
11-06-2014, 03:14 PM
These are really good and valid concerns Harbl, no need to edit because you are learning stuff. Learning stuff is good, and helps get rid of some worries. In a nutshell, this is what I've learned that can apply to what you commented about:

If you want specific things given to specific people, you can definitely gift them these things in your will and that earmarks them for those people as per your wishes...if you need things liquidated to pay debts, there should be other things in your estate worth liquidating. You are supposed to be able to pick a person to be the executor of your will. One would hope you pick someone you are going to trust, plus the court DOES review your will and the beneficiaries can sue if the executor goes against the will.

If you come on hard times and need to sell something that you gift away in your Will, that part becomes void. If you give it away now, you lose it now...so that's why people wait until their death to give things away.

For people that live beyond their means, rack up a lot of debt, then hope to leave only the good for their beneficiaries and escape the debt...it just doesn't work that way. Before any of the estate is released to the executor they have to show your debts and assets and an evidence of a search for all your debts. If the executor doesn't pay your debts, the executor is on the hook for them. They will and should do their due diligence in making sure they sort out the mess you leave behind. That could also include tracking down the assets you give away...before you die...debt collectors don't care about your vintage rifle at that point, only it's value

Dying WITHOUT a will or if you are native is a whole different ball of wax - everyone should have a will.

Sorry to nerd out...I wish we learned all this back in high school. Everyone dies at some point with some sort of life debris lingering; some understanding about how the process works could actually help people "tidy their affairs" even if you aren't interested in the legal field.

Candychikita
11-11-2014, 03:38 PM
Hmm...harbl...having a large value estate, it's not so much death taxes as probate fees. Look that up. My info is for BC, but there is probably something similar in AB and every other province in Canada. Learning about handling big estates now and minor children; before I was looking at your average estates...singletons, couple with joint property, couple with adult children, your average person with not a lot saved (after mortgage and debts etc)


In British Columbia, the basic fee to apply for probate is $200. The basic fee is waived if the value of the estate does not exceed $25,000. In addition to the basic application fee, there is a requirement that the following fees be paid: $6 for each $1,000 or part of $1,000 of the value of the estate in excess of
$25,000, up to $50,000, plus: $14 for each $1,000 or part of $1,000 of the value of the estate in excess of $50,000.

These are court fees...if you're rich, more people want court proof that you're dead before they hand over your assets.

Planning your estate in such a way can eliminate most or some of those probate fees (just like those death taxes you were worried about) but there are pros and cons for doing things in a certain way as well. I understand now why some very rich families give their kids trust funds vs. the whole amount when they die. Having a trust removes that from your estate (which could be contested by either a spouse or a child, and could be hit with probate fees) but still assigns the amount to the intended beneficiary. I have questions whether or not a trust could shelter the beneficiaries from your debts...

http://beaconlaw.ca/strategies-to-avoid-probate-fees/
http://beaconlaw.ca/new-trusts-create-new-estate-planning-opportunities/

Very interesting :D There's always one way for the average person, and then a completely different way for the wealthy person. Better tax advice, better investment advice, better estate planning. Jeepers.

JRW (QOR)
11-11-2014, 05:39 PM
Hmm. I think you may be misinformed there. When you die, you have one final tax return of what you owe to the government (basically your year's tax season cut short by your untimely death)

http://turbotax.intuit.ca/tax-resources/inheritance-tax.jsp

But. If you have investments, the government wants their cut of the capital gains. That is supposed to be avoided by leaving your investments directly to a beneficiary vs needing the estate to cash out your investments (incurring capital gains, that the government wants their taxes on) If you leave them directly to a beneficiary it gets rolled into their accounts, and the taxes associated with it are charged when they withdraw it (or when they die, which can be avoided by rolling it down the line by leaving directly to a beneficiary) Same as transferring RRSPs in a divorce settlement to an ex spouse is not taxed, but if you cash them out and then pay them to the spouse there is.

No capital gains on a principal residence, and any non registered investment you will have capital gains if it appreciated...50% of that increase is what is taxable. It's not such a big boogeyman. Your firearms collection doesn't appreciate in value...but it doesn't decrease in value either. They need to know the value of the assets you have just in case you need to have something liquidated to pay off the massive debt you've incurred...not to tax you to ...death BAHAHAHAH I KILL MYSELF BAHAHAHAH double pun right there

I haven't done a simulation yet on multiple investments as part of an estate, but this is your average person's estate.

There's municipal tax to be paid upon the death of someone based on the property value of the house. Probate tax. Went through all this with my Mother-in-law. We lost some 30K to that tax.

Candychikita
11-12-2014, 10:45 AM
There's municipal tax to be paid upon the death of someone based on the property value of the house. Probate tax. Went through all this with my Mother-in-law. We lost some 30K to that tax.

Ya, I learned more about probate fees yesterday. It's not the tax people are worried about but probate fees. What nastiness...without being aware of this stuff, one can certainly be in a big pickle depending on your province. It is NOT similar from province to province in the slightest. In BC probate fees don't start until your estate is more than $25,000; some provinces probate fees start right at $0, and some have a maximum fee amount no matter what size estate you have. You are in ...Ontario JRW (QOR)?

Looks like Alberta, NW Territories, Nunavut, Quebec, and the Yukon have the best probate fees.


In Alberta, the maximum Probate Fee payable is $400. http://www.lypkielaw.com/do-i-need-to-be-worried-about-probate-fees-in-alberta/

Charts showing each province's probate fees side by side:
http://www.fiscalagents.com/newsletter/emailnews/table_probatefees.htm
http://blog.taxresource.ca/tax-rates/probate-fees-by-province/

Jeepers creepers. So much for a unified Canada - we can't even die the same way.

harbl_the_cat
11-12-2014, 05:23 PM
Dayum Candy - thanks for the will and legal edumacation.

During my sabbatical, I'm going to try to take care of all the legal stuff I should have done years ago including setting up a will, setting up my operating and holding corporations and transferring my assets accordingly.

I'm just starting to get into big enough money that it's making sense to do so.

My biggest concern isn't dying - but dying and my children not having the ability or wisdom to know how to capitalize on the inheritance I leave to them.

I edited my post since there was tangible misinformation from my own misunderstanding about the subject (admittedly one I don't know much about).

Candychikita
11-12-2014, 06:16 PM
Dayum Candy - thanks for the will and legal edumacation.

I'm learning too. If someone wants to correct/add to what I've got up there, by all means please do. It's my first in-depth encounter with estates heh. We are going from fluffy pretty small estates with no loose ends graduating to nasty beastie huge estates where everyone and their ex wives and estranged kids out for blood. Certainly is keeping such dry content interesting. People sure are horrible to each other sometimes. Just in time for Christmas! Oh JOY! :D :D