In Michigan, “a person shall not purchase, carry, possess, or transport a pistol in this state without first having obtained a license for the pistol.” MCL 28.422(1). Anyone looking to obtain or purchase a handgun must fill out an application at a local law enforcement office (e.g. county sheriff, city or village police), and that department “shall with due speed and diligence issue licenses to purchase, carry, possess, or transport pistols to qualified applicants unless he or she has probable cause to believe that the applicant would be a threat to himself or herself or to other individuals, or would commit an offense with the pistol that would violate a law of this or another state or of the United States.” MCL 28.422(3). If a person fails to comply with the requirements for a pistol license may be found responsible for a state civil infraction punishable by a fine up to $250.00. MCL 28.422(5). In addition, the pistol will be confiscated by the government and destroyed.
What if someone is entitled to inherit a handgun from an estate because it was bequeathed by a last will and testament or distributed under Michigan’s intestacy laws? What are the responsibilities of the heir or devisee receiving the handgun? What are the responsibilities of the personal representative handling the pistol?
Michigan law used to be quite cumbersome regarding handguns in probate proceedings. A personal representative taking possession of the weapons for the purpose of estate administration was required to register and obtain a license for EACH pistol in his or her possession. This was odd given that the personal representative was often a professional (e.g. attorney) that would NEVER take legal title to the pistol anyway. In the hands of a personal representative or an heir, the unregistered handgun becomes contraband that was subject to seizure and destruction by law enforcement, regardless of the gun’s value or whether it was even used in an illegal manner.
On November 24, 2015, Gov. Rick Snyder signed an amendment to the pistol licensing statute exempting “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.” “Devisee” is a person designated under a last will and testament to receive certain estate property. “Heir” is a person who is entitled to an inheritance under Michigan’s intestacy laws because the decedent died without a will. Effective February 22, 2016, MCL 28.422(8) imposes the following rights and responsibilities upon fiduciaries and heirs regarding handguns:
- “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.” – To protect the recipient, the personal representative should require the heir or devisee to sign PC588 (Receipt of Distributive Share-Personal Property) indicating the specific property received and the date it was distributed. A trustee of a trust should have the beneficiary of a handgun sign a similar acknowledgement so he or she can competently inform law enforcement that they are still within the 30-day “safe harbor”.
- “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, 1998 PA 386, MCL 700.1101 to 700.8206, including when the next of kin is the individual inheriting the pistol.” – If there are no formal probate proceedings or the estate is being handled under small estate proceedings, then the surviving spouse or another closely related person of the decedent can sign the licensing forms.
- “If the heir or devisee is not qualified for a license under this section, the heir or devisee may direct the next of kin or person authorized to dispose of property under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8206, to dispose of the pistol in any manner that is lawful and the heir or devisee considers appropriate.” – In lieu of the disqualified heir or devisee having the pistol seized by law enforcement and destroyed, that person can return the handgun to the personal representative or trustee to distribute to an eligible heir. The prospective inheritor who could not take the gun would be entitled to receive other estate property or money equal to the value of the handgun that was returned.
- “The person authorized to dispose of property under the estates and protected individuals code, 1998 PA 386, MCL 700.1101 to 700.8206, is not required to obtain a license under this section if he or she takes temporary lawful possession of the pistol in the process of disposing of the pistol pursuant to the decedent’s testamentary bequest or the laws of intestacy.” – The personal representative of the estate or the trustee of the decedent’s trust is NOT required to register and license the handguns in his or her possession provided that said possession is only for the sole purpose of administering the estate. If the personal representative or trustee is actually the heir or beneficiary to the weapon, then he or she will be required to register or license that gun within 30 days of acquiring possession.
- “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, 1998 PA 386, MCL 700.1101 to 700.8206, is unable to retain his or her temporary possession of the pistol or find alternative lawful storage.” – The police have a duty to contact the personal representative or trustee to inquire if he or she can take possession of the firearm before they confiscate and destroy it after seizure from an unqualified recipient.
- “If a law enforcement agency seizes or confiscates a pistol under this subsection, the heir or devisee who is not qualified to obtain a license under this section retains ownership interest in the pistol and, within 30 days of being notified of the seizure or confiscation, may file with a court of competent jurisdiction to direct the law enforcement agency to lawfully transfer or otherwise dispose of the pistol.” – The burden is on the heir to file a petition in circuit court for return of the handgun if he or she disputes the basis for the seizure.
- “A pistol seized under this subsection shall not be destroyed, sold, or used while in possession of the seizing entity or its agents until 30 days have passed since the heir or devisee has been notified of the seizure and no legal action regarding the lawful possession or ownership of the seized pistol has been filed in any court and is pending.” – It should be noted that statutes were amended in 2010 to provide law enforcement with blanket immunity for the disposition of seized firearms, meaning that the police will not be liable for damages concerning destruction of the weapon.
This “safe harbor” protects fiduciaries and beneficiaries alike from negative consequences from possession of the pistols. However, heirs and devisees have a limited amount of time to properly register the weapon or it will be subject to confiscation and the new owner will be liable for a fine. If you inherited a firearm from an estate or you are a fiduciary managing pistols and have questions, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.
