Estate Planning for Military Personnel

Pre-deployment preparations for Pennsylvania Army National Guard units, which were recently given notice for overseas posting, will involve Reservists' execution of personal & estate planning documents.

In this posting on the eve of the Memorial Day weekend, I provide some links to reliable online military resources about estate planning.

This Memorial Day occurs in the midst of announcements regarding continued deployments that will affect many service personnel and their families in Pennsylvania & other states.

On February 29, 2008, The Sentinel (Carlisle, PA) reported in an article entitled "Guard unit alerted for possible deployment", by Joseph Cress, as follows:

About 1,200 more Pennsylvania National Guard troops are being told they may go to Iraq within a year.

Members of the 28th Combat Aviation Brigade, headquartered at Fort Indiantown Gap in Annville, received an alert order a couple months ago, said Lt. Col. Chris Cleaver, a Guard spokesman.

The new call-ups are in addition to 4,000 Pennsylvania soldiers with the 56th Stryker Brigade who were told in October they could be sent to Iraq within a year.

Cleaver said this is only an alert order to step up preparation for possible mobilization. * * *

“Alert orders may never mature to mobilization orders,” Cleaver explained. He added the 28th brigade would likely leave in early 2009, a few months after the Stryker Brigade.

If both forces go, it would be the largest deployment of Pennsylvania National Guard troops into combat since World War II and the first time the entire 28th Brigade would deploy overseas as a whole unit, Cleaver said. Prior to this, elements of the 28th Brigade have deployed to Iraq and Afghanistan. * * *

Issuing the alert order now gives 28th Brigade members ample time to work with family and employers to settle matters and prepare for possible deployment, Cleaver said. Guard counselors have already met with families to brief them on what to expect and what services are available. * * *

On May 20, 2008, the Pittsburgh Post-Gazette reported further anticipated deployments in an article entitled "W. Pa. Guard brigade headed for Iraq -- Moves signal stable troop levels through next year", by Nancy A. Youssef, as follows:

The Defense Department yesterday announced that it will send seven combat brigades to Iraq by the end of the year, suggesting that the Pentagon is planning to maintain its troop levels in Iraq through next year.

The military also alerted four National Guard Army brigades, or roughly 14,000 troops, including one from Western Pennsylvania, to prepare for deployments to Iraq beginning next spring. * * *

The Washington, Pa.-based 2nd Infantry Brigade Combat Team of the 28th Infantry Division, which includes some 2,500 soldiers from Western Pennsylvania and Ohio, previously served in Iraq in a deployment that began in 2005.

The alert was issued this far in advance of their spring 2009 deployment to give the Guard members and their families time to plan. * * *

An essential part of pre-deployment preparation is estate planning.

NCO Matters, an Association of the United States Army, recommends an online "Estate Planning Tool Kit" (10/11/2002) that briefs service personnel about estate planning:

Estate planning produces a plan that may include some or all of these: a will, military testamentary instrument, a trust, life insurance, an advance medical directive, a health care power of attorney, designation of anatomical gifts, and other dispositive documents.

The Army Judge Advocate General's Corps' new Estate Planning Tool Kit for Military & Family Members covers basic tools and techniques many military members use to plan their estates.

That very comprehensive Toolkit reiterates, in its introduction, the basics of personal & estate planning:

Military legal assistance attorneys prepare thousands of wills every year for soldiers and their spouses. This document is usually the center piece of a member's estate plan.

Estate planning is an ongoing, continuous process of coordinating your legal and financial well being to acquire, accumulate, preserve, and dispose of your assets and wealth during your life and at your death.

A well-designed plan provides not only for transfer of your property on death, but also considers authorized benefits, the adequacy and flexibility of life insurance, the need for retirement income, and the contingencies of mental or physical disability.

Effective estate planning may amount to little more than preparing a simple will and reviewing your life insurance beneficiary designations, preparing a power of attorney, an advance medical directive, designating organ donation, or it may be a highly complex plan that includes trusts and other property transfer instruments. * * *

The Military Officers Association of America recognizes that very continuum in estate planning -- from simplicity to complexity -- and notes the effect upon a proper selection of professional advisors qualified to work on appropriate documents:

For basic needs, your installation JAG or legal services office (usually open to retirees in addition to Active Duty) is usually sufficient.

As you accumulate more assets and your situation becomes more complicated, you may need some additional estate planning tools.

Also, special circumstances such as divorce, remarriage, marriage to a non-US Spouse and children with special needs require legal documents specifically tailored to meet your new circumstances.

Additional estate planning tools include: a durable power of attorney; a revocable living trust; an irrevocable life insurance trust; a minor's trust; a special needs trust; and various types of charitable trusts.

These advanced estate planning documents may be outside the scope of the installation legal services office, so you may need to seek the help of a qualified private practice attorney. * * *

Operation Home Front, operated by the Office of the Lieutenant Governor of Illinois, provides generic explanations about various documents involved in military estate planning in its online article "Estate Planning Preparedness Information".

See also: "Estate planning: What you need to know", by Mathew B. Tully, posted by The Army Times.

For a checklist of matters to be considered generally, see: "Estate Planning Checklist -- 25 Things You Can Do To Get Your Estate in Order" (PDF, 3 pages), which addresses: Estate Planning; Insurance Planning; Organizing Financial Records; & Personal Planning.

A link on the website of Ft. Bragg suggests a "Will Preparation Worksheet", in the form of a questionnaire seeking specific data. See also: Estate Planning Questionnaire & Worksheet (PDF, 9 pages), posted by the Wyoming Military Department, Army National Guard, Office of the Staff Judge Advocate.

In his article posted by the American Bar Association entitled "Estate Planning for the Military" (PDF, 3 pages), Capt. Kevin P. Flood, JAGC, U.S.N.R., Ret., provides a primer for attorneys as to how estate planning for military personnel can differ from the same process for civilians.

Estate planning for members of the military often differs from the model used in a civilian practice. For one thing, the military client requesting a will or other estate-planning document may be much younger than the typical civilian client.

Due to the dangers associated with service, preventive law programs in the military encourage service members to have their affairs in order and to execute wills — more than 550,000 wills were prepared for active duty and reserve service members during the Desert Storm mobilizations.

Very often clients do not have much more that their $250,000 Service member’s Group Life Insurance Policy (SGLI) and other military benefits, and these should be reviewed and coordinated with the will or estate plan. * * *

He recognized that estate planning, which leads into an estate administration process, still relies heavily upon state law:

This article highlights only the areas of main concern in assisting a military member in estate planning, with the understanding that additional issues must be dealt with, such as taxation, probate costs, fiduciary selection, and the like.

Finally, for those more visually inclined, check out the PowerPoint presentation, also prepared by Capt. Kevin P. Flood, JAGC, U.S.N.R., Ret., entitled "Estate Planning for Military Personnel", again posted by the ABA.

Update: 05/27/08:

Referenced on the Stryker Brigade News in a posting (05/26/08), was an article, entitled "Local Guard prepares for Iraq" (05/26/08), by Steve Marrioni, published in the Evening Sun (Hanover, PA), regarding the very personal aspects of the mobilization of the 56th Stryker Bridgade:

Especially in times of war, most people know Memorial Day is a day set aside for more than firing up the grill with family, friends and neighbors.

This weekend, many soldiers with the local National Guard unit will be doing just that. Hot dogs, hamburgers, parades, ceremonies.

But they, and their families, will have something else in the back of their minds. Those soldiers will soon be serving in Iraq.

The 100 or so members of Battery A of the First Battalion of the 108th Field Artillery, based in Hanover, will be among the 4,000 Pennsylvania Guard members deploying to Iraq with the 56th Stryker Brigade. * * *

While the soldiers have a lot of questions, so do the families. And sometimes it takes other family members to answer those, or address their worries.

"When are they leaving, when are they coming home, what will they be doing," Beckner said some of the questions have been. "We're trying to be there for each other."

They're there to answer questions, too, as the soldiers prepare to go. Who gets power of attorney for the deployed soldier? What about health care? Child care? These are all things that need to be addressed along the way.

The Army has a set system in place, and groups like this help guide families through what can seem like a confusing jungle of paperwork and acronyms.

But, perhaps most importantly, they'll know what their friends are going through. They all have a loved one who will be serving in Iraq.

"We're all on a roller coaster ride for the next year," Beckner said. "And it's an emotional one." [Link added.]

Update: 05/29/08:

The American College of Trust & Estate Counsel announced to its members, in a weekly update email message, the addition of a link to this Blog posting, placed in both its "Public" and "Member" areas, under the new heading "Estate Planning -- Military", accompanied by a link to that very useful "Estate Planning Tool Kit" provided by the Army Judge Advocate General's Corps.

Update: 06/09/08:

On June 2, 2008, the Daily Local (Chester Co., PA) published a weekly column by Attorney Janet Colliton, of West Chester, PA, entitled "How active-duty military personnel can gain access to legal assistance", which referenced the posting above.

This past May 23, in honor of the upcoming Memorial Day commemoration, a friend and colleague, Neil Hendershot, included in his blog valuable references to estate planning information for military personnel.

Neil, a Harrisburg attorney with the law firm of Goldberg Katzman PC, hosts the Pennsylvania Elder, Estate & Fiduciary Law Blog, a prolific site on which can be found everything from senior crime prevention programs to recent public will contests like the Barnes Foundation dispute. In glancing through it, the reader might learn everything from calculating virtual age to how to plan estates involving firearms. It can be found at www.paelderestatefiduciary.blogspot.com.

For the article on estate planning for military personnel, scroll down to May 23, 2008. Neil noted that his article coincided with the call-up of Pennsylvania National Guard reservists from Fort Indiantown Gap in Annville within a year.

He provided links to several military Web sites to assist servicemen and women in preparing for active duty. * * *

Dying in the Civil War

In Central Pennsylvania, there was big national news recently: On April 14, 2008, the National Park Service opened a new Museum and Visitors' Center at the Gettysburg National Military Park, in Adams County, PA.

Gettysburg holds a special place in American history, not only as a turning point in the war, but as the site of Lincoln's Gettysburg Address, in which he outlined his vision for the nation.

Completion of this $135 million project will enable the [Gettysburg National Battlefield Museum] Foundation and the National Park Service to make Gettysburg a classroom of democracy: a place that educates and inspires; a place that honors America by promoting a better understanding of the forces that shaped our national character. * * * [Link for quote]

This is national news, because the Battlefield at Gettysburg is a treasure of our American history:

The Battle of Gettysburg was a turning point in the Civil War, the Union victory in the summer of 1863 that ended General Robert E. Lee's second and most ambitious invasion of the North.

Often referred to as the "High Water Mark of the Confederacy", it was the war's bloodiest battle with 51,000 casualties.

It also provided President Abraham Lincoln with the setting for his most famous address. * * *

Born, raised, & still resident in Central Pennsylvania 25 miles northwest of Gettysburg, I have long been acquainted with the Battle.

Now older, as a "trust & estate" lawyer, I contemplate more seriously those "51,000 casualties" -- soldiers who were killed, wounded, or lost in action -- during three hot days on acreage away from home that can be toured now -- from one end to the other, and through both armies' lines -- in one day by car.

In the aftermath of the battle, every farm field was a graveyard and every church, public building and even private homes were hospitals. Medical staff were strained to treat so many wounded scattered about the county. * * *

By January 1864, the last few remaining patients were gone and so were the surgeons, guards, nurses, tents and cookhouses. Only a temporary cemetery on the hillside remained as a testament to the courageous battle to save lives that took place at Camp Letterman. * * *

Prominent Gettysburg residents became concerned with the poor conditions of soldiers' graves scattered over the battlefield and at hospital sites, and pleaded with Pennsylvania Governor Andrew Curtin for state support to purchase a portion of the battlefield to be set aside as a final resting place for the defenders of the Union cause.

Gettysburg lawyer David Wills was appointed the state agent to coordinate the establishment of the new "Soldiers' National Cemetery", which was designed by noted landscape architect William Saunders.

Removal of the Union dead to the cemetery began in the fall of 1863, but would not be completed until long after the cemetery grounds were dedicated on November 19, 1863. * * *

News reported locally during the Civil War was collected in searchable text made available online by the "Valley of the Shadow" historical project, created by the Virginia Center for Digital History, affiliated with the University of Virginia.

That Project digitalized and also cataloged the contents of three local Union newspapers published in Franklin County, Pennsylvania, and three local Confederate newspapers published in Augusta County, Virginia, that reveal the views of "two communities in the Civil War".

As a T&E lawyer, I found myself searching that Project's records under such terms as "estate", "probate", "death", and "court". The resulting death notices and announcements confirmed that there was an administrative aftermath to many deaths where property was owned by a decedent.

Estates back then were administered under state law (without any concern for federal law) in a simplified, but public fashion that mirrors the basic approach retained today in Pennsylvania -- probate of a last will or application of intestate laws, notifications to creditors, collection of assets, administration by a personal representative, litigation if necessary, final accounting to the Orphans' Court, and distribution of net assets to those entitled.

While browsing the Project's content, I was drawn back to the Battle of Gettysburg. Reading some newspaper articles published in July, 1863, I could experience the North's terror from the insurgents' "invasion", and the South's fervor for a final victory to end the conflict.

According to Confederate Field Orders issued by General Robert E. Lee, reprinted in the Franklin Depository on July 15, 1863, high morality motivated the invading army:

Headquarters Army Northern Virginia, Chambersburg, Pa., June 27, 1863
General Orders No. 73

The Commanding General has observed with marked satisfaction the conduct of the troops on the march, and confidently anticipates results commensurate with the high spirit they have manifested.

No troops could have displayed greater fortitude, or better performed the arduous marches of the past ten days. Their conduct in other respects has, with few exceptions, been in keeping with their character as soldiers, and entitles them to approbation and praise. * * *

It must be remembered that we make war only upon armed [illegible] and that we cannot take vengeance for the wrongs our people have suffered without lowering ourselves in the eyes of all whose abhorrence has been excited by the atrocities of our enemies, and offending against Him to whom vengeance belongeth, without whose favor and support our efforts must all prove in vain.* * *

The Battle of Gettysburg culminated on the third day in Pickett's Charge, the "High Water Mark of the Confederacy", where "[s]o much carnage [occurred] in such a small place -- it is difficult for us today to realize the horror those young men faced * * *."

A report in the Stanton Spectator on July 28, 1863, focused on the commitment and courage of the Confederate soldiers, but could not deny the carnage inflicted by the opposing Union army.

An eye witness testifies that they formed into line of battle as coolly and deliberately as if forming for dress parade.

Headed by their gallant officers, the column being led by General Pickett himself, they moved forward to the carnage across a plain, some 500 yards in width, subjected to the action of guns smoking like a hurricane of death all over the field.

The noble and gallant Pickett, commanding then pressed up to the ugly ramparts of the enemy. It is believed that a more gallant and heroic charge was never made on this continent.

Pickett's division has been in the hardest fighting of this bloody war. The division have borne themselves well and nobly, always and everywhere. But the crowning glory of those patriot heroes was achieved in the assault upon the ironclad crest of Gettysburg.

The list of casualties tells, in terms of truer eloquence, the bravery and patriotism of that blood-stained and self-honored division, than can any figures of rhetoric or poetry. Every Brigadier fell, and a long catalogue of Colonels and other officers.

The division went in from five to six thousand strong. Three days after the battle but fifteen hundred reported for duty. * * *

The Franklin Repository, on July 29, 1863, reflected on the sacrifices displayed on the battlefield:

On Tuesday evening after the fight, we found ourselves among the crowd of visitors to the battle field of Gettysburg.

There were many whose sad faces and anxious inquiries proclaimed their errand. Others, again, were busily attending to the necessities of the wounded; but perhaps in every breast there was felt something of that strange feeling which instinctively draws us to a battle field.

It is not a morbid curiosity as some would claim. It is with a feeling more akin to reverence that we draw nigh to the broad and bloody altar, on which thousands of our fellow beings have so freely laid down their lives for our redemption.

Such spots are shrines to which true patriots will ever make their pilgrimages; and we may rest assured that the nation is nigh destruction when it can forget or walk thoughtlessly over its battle grounds. * * *

A newly-released book provides an analysis how the people of that era were willing to die or to support causes that resulted in such massive casualties.

Professor Rea Andrew Redd, of the Eberly Library, Waynesburg College, in Waynesburg, PA, just posted on his blog, the Civil War Librarian, a notice about a new book, Awaiting the Heavenly Country, by Mark S. Schantz (2008, Cornell University Press, 256 pages).

The book analyzes attitudes towards death in America in the mid-nineteenth century. See: Just Released---From The Hearth, Through The Battlefield, To The Grave (05/06/08):

How much loss can a nation bear?

An America in which 620,000 men die at each other's hands in a war at home is almost inconceivable to us now, yet in 1861 American mothers proudly watched their sons, husbands, and fathers go off to war, knowing they would likely be killed.

Today, the death of a soldier in Iraq can become headline news; during the Civil War, sometimes families did not learn of their loved ones' deaths until long after the fact. Did antebellum Americans hold their lives so lightly, or was death so familiar to them that it did not bear avoiding?

In Awaiting the Heavenly Country, Mark S. Schantz argues that American attitudes and ideas about death helped facilitate the war's tremendous carnage. Asserting that nineteenth-century attitudes toward death were firmly in place before the war began rather than arising from a sense of resignation after the losses became apparent, Schantz has written a fascinating and chilling narrative of how a society understood death and reckoned the magnitude of destruction it was willing to tolerate. * * *

He quotes this passage from Mr. Schantz' book:

Americans came to fight the Civil War in the midst of a wider cultural world that sent them messages about death that made it easier to kill and to be killed.

They understood that death awaited all who were born and prized the ability to face death with a spirit of calm resignation.

They believed that a heavenly eternity of transcendent beauty awaited them beyond the grave. They knew that their heroic achievements would be cherished forever by posterity.

They grasped that death itself might be seen as artistically fascinating and even beautiful.

See also: "In the Mourning Store", a review of that book by Adam Gopnik, published in The New Yorker Magazine on April 17, 2008.

Today, the quiet, well-marked, Gettysburg National Military Park embodies everything that is "fascinating and even beautiful" about death in combat for a cause. The new Museum and Visitors' Center, with its architecture, collections, & illustrations, should aid our contemplation about the past tumult there.

"I bequeath my machine gun to . . ."

Recently there have been discussions on the listserv of the National Center on Elder Abuse regarding the possession and use by elderly persons of firearms. These discussions lead, logically, to concerns about disposition of firearms upon an owner's death.

One of the students in my current Elder Law class at Widener University School of Law (Harrisburg Campus), accepted my invitation to write an article on such a topic for posting on this Blog.

Following is the informative article written by Joshua G. Prince [joshua@princelaw.com] (as revised, supplemented & edited by me for posting here).

Grandpop’s Machine Gun in the Chest, Part I

What does an attorney do when, after an elderly person dies, a search of the home reveals a gun?

This issue faces estate attorneys quite frequently, especially in pro-gun states, such as Pennsylvania. Most attorneys, even those not proficient in firearms law or firearms in general, will properly handle the transfer of a typical firearm.

What does an attorney do when the search reveals an automatic weapon -- essentially, a "machine gun" (or "machinegun" under federal law)?

Uncertainty in proper disposition of such a firearm could lead to one’s client being convicted of possession of an unregistered firearm, punishable by up to 10 years, $250,000 in fines and the forfeiture of the weapon and any “vessel, vehicle, or aircraft” used to conceal or convey the firearm. [1]

Initially, an attorney or personal representative should investigate whether there are any firearms among estate assets. What the heirs believe are just routine firearms, may actually be machineguns. Thus, consider carefully if a firearm is a revolver, a bolt action, a semi-automatic, or an automatic firearm. The distinction is crucial.

The Bureau of Alcohol Tobacco Firearms and Explosives (BATFE) provides online identification assistance in a two part slide presentation, Identification of Firearms, Part I and Identification of Firearms, Part II. Furthermore, with a picture and description of the firearm, an attorney or personal representative could determine the character of a firearm on Subguns' NFA Firearms Discussion Board. Its contributors pride themselves on the identification and proper procedures for determining the status of a specific firearm. Also, a Federal Firearms Licensed (FFL) dealer can be consulted to make such a determination.

Machine guns are governed by several laws. The main statutes are the National Firearms Act (NFA of 1934) [described by Wikipedia here] [2], the Gun Control Act (GCA of 1968), [described by Wikipedia here] [3], and the Firearms Owners Protection Act (FOPA of 1986) [described by Wikipedia here]. [4]

The consequences of unauthorized possession or use of such a firearm can be severe. For an example of such consequences in a federal criminal law setting, see: United States v. Carter, a Seventh Circuit Court of Appeals case decided October 17, 2006, regarding the definition of "machinegun" and also "silencer".

The definition under federal law of a "machinegun" is “[A]ny weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.” [5]

Any machine gun must be registered in the National Firearms Registration and Transfer Record (NFRTR). [6] A firearm for which there are no or incomplete records in the NFRTR is considered contraband and is subject to seizure and forfeiture by BATFE. [7]

Thus, once a determination is made that a firearm is a machine gun, an attorney or fiduciary is advised to search for the registration of that firearm, since it is common for such a weapon not to be in the registry. [8]

If the attorney or fiduciary is unable to find a registration, the weapon's status can be confirmed by contact in writing to BATFE. [9] This inquiry should be accompanied by documentation showing the executor’s or administrator’s authority, under state law, to represent the decedent and to dispose of the decedent’s firearms. Although BATFE is prohibited from disclosing tax information (which all NFA registrations are), it may disclose the owner information of the firearm, to persons lawfully representing registrants of NFA firearms. [10]

If the registry does not show the weapon to be registered, BATFE requests that the administrator or executor contact the local BATFE branch office, so the weapon can be destroyed. But there are other alternatives.

The cheapest registered machine gun runs around $4,000, with some transferables (the term used for weapons which are registered) going for upwards of $200,000. While these are the prices for complete “transferable” weapons, the price of the parts to such weapons may also be high.

While BATFE desires to dispose of such weapons, in entirety, including parts, which in themselves are not machine guns, BATFE allows for a weapon to be decommissioned instead.

“The preferred method for destroying a machinegun receiver is to completely sever the receiver in specified locations by means of a cutting torch that displaces at least one-quarter inch of material at each cut location.” [11]

“A machinegun receiver may also be properly destroyed by means of saw cutting and disposing of certain removed portions of the receiver.” [12]

BATFE has published preferred procedures for the destruction of specific machine guns. [13] By destroying the receiver, you are enabling the estate or the beneficiary of the weapon to sell the “parts”.

Furthermore, if the estate does not wish to destroy a war relic or an antique firearm, the estate may donate the weapon to a museum. Museums are accustomed to such transfers and will usually handle the contact with BATFE and transfer of the weapon.

The downside is two-fold. For one, the estate will not receive any money for the weapon, unlike the sale of the parts. Furthermore, if BATFE should offer a new amnesty to allow one in possession to register a previously unregistered machinegun, the estate (or its distributee) no longer would have possession of the firearm. If however, the estate cuts the receiver, per BATFE specs, and the estate's distributee of the weapon's parts would retain them "in kind", it could be possible, during such an amnesty, to register the receiver later, after it would be “repaired.”

Thus, the issues of firearms in estates can be daunting, especially to those with little or no knowledge of current firearms laws.

As the veterans of past wars who retained collectible firearms, or the elderly gun collectors who preserved them, die in greater numbers, the issue of "war bring-backs" will surface, requiring that more estate attorneys and fiduciaries deal with these complex legal issues.

For example, the NFA Owners Association promotes pending federal legislation on such issues on its homepage.

NFAOA supports H.R. 1141, proposed legislation to allow veterans and their heirs to register historic firearms obtained while the United States was at war or during foreign conflicts (click here to read H.R. 1141, which is identical to H.R. 2088, which was introduced in the 109th Congress but was not passed).

NFAOA continues to support a Congressional request for the Department of Justice Office of Inspector General (DOJ-OIG) to investigate ATF's administration of the World War II War Trophy program, as well as the 1950s era DEWAT program, and its impact on veterans and their heirs (click here to read the letter). * * *

On the other hand, BATFE has known since at least 1981 that several thousand machine guns are registered to dead people; yet, they have failed to take any action. [14]

---

Footnotes:

[1] 26 U.S.C.S. §§ 5861(d),(j); 26 U.S.C.S. § 5872; 49 U.S.C.S. §§ 781-788.

[2] 26 U.S.C.S §§ 5801-5872; 73 P. L. No. 474; 48 Stat, 1236.

[3] 90 P. L. 618; 82 Stat. 1235, § 921.

[4] 18 U.S.C. § 922(o)(1) (1986); 99 P.L. 308; 100 Stat. 452, § 102(9).

[5] 26 U.S.C.S § 5845(b).

[6] 26 USCS § 5841.

[7] U.S. Congress, House Committee on Appropriations, Subcommittee on the Treasury, Postal Service, and General Government Appropriations, Treasury Postal Service, and General Government Appropriations for Fiscal Year 2002, Part 3, Statements of Members of Congress and Other Interest Individuals and Organizations, 107th Cong., 1st Sess. (Washington, GPO, 2002), p. 9.

[8] U.S. Congress, Senate Committee on Appropriations, Oversight Hearings on Bureau Alcohol, Tobacco & Firearms, 96th Cong., 1st Sess. (Washington GPO 1979). P.39. (investigating why one, J. Curtis Earl, was declared to be in illegal possession of FOUR HUNDRED AND SEVENTY FIVE machineguns; yet, he had the registration paperwork for all of the firearms.)

[9] BATFE, ATF National Firearms Handbook, 58 (June 2007).

[10] Id.

[11] Id. at 21-22.

[12] Id. at 22

[13] Id. at Appendix B (ATF Rulings 2003-1, 2003-2, 2003-3, 2003-4)

[14] Deron Dobbs, Status Report National Firearms Registration and Transfer Record, 15 (1981).

Update: 09/13/07:

The editor of the website of the American College of Trust & Estate Counsel requested permission to repost this article, with a link to this post, on its "members only" area, which Josh & I granted.

Also, this entry was the subject of a message posted on September 12, 2007, by James C. Counts, II, CPA, on the American Bar Association's Tax Section Listserv:

As advisors to clients each of us may work with a fiduciary that calls you and asks what do I do with Grandpa's machine gun? To have idea what you need to do you might wish to read this article.

I have read the article and it alerts the reader to legal issues if a fiduciary should find a machine gun in the assets of someone. What are the legal issues involved and what should the fiduciary do?

The article has several links to authoritative sites for governmental agencies and related nonprofit sites.

For anyone that does fiduciary work I would suggest you read the article and bookmark some of the sites the author provides.

If the fiduciary does not do what is required they could have some legal problems for themselves.

In any case the basic article only took a few minutes to read. You can spend whatever time reading the sites linked in the article.

It has also been the subject of postings on many gun-related blogs & forums, including the Pennsylvania Firearm Owners Association Discussion Forum.

On September 13, 2007, Professor Gerry Beyer posted an entry on the Wills, Trusts & Estates Prof Blog, which he edits, entitled "Dead People With Guns", referencing this post:

One of the growing estate planning niches is preparing for the death of gun owners and handling the estates of gun owners.

Here are two sites which have detailed information about the issues and the solutions:

• Neil E. Hendershot, "I bequeath my machine gun to . . ." , PA Elder, Estate & Fiduciary Law Blog, Sept. 12, 2007: * * *

• David M. Goldman, Florida Gun Trusts or National Firearms Trust, Florida Estate Planning Lawyer Blog, July 30, 2007, Wood, Atter, & Associates, National Firearms Gun Trust: * * *

The second site discusses the legal tool of a "Firearms Trust" (or "Gun Trust"), which provides special powers to a trustee not normally considered or granted, to carry out specified purposes of maintenance & disposition of weapons.

See also: BATFE Special Notice, "Transfers of National Firearms Act Firearms in Decedents' Estates" (Rev 02/23/06). It notes contact information for inquiries:

Bureau of Alcohol, Tobacco, Firearms & Explosives
National Firearms Act Branch
244 Needy Road
Martinsburg, WV 25405

Phone: 304 616-4500
Fax: 304 616-4501

Update: 09/14/07:

I exchanged email messages today with David M. Goldman, Esq., of Jacksonville, Florida, who authors the Florida Estate Planning Lawyer Blog. He referenced my post in his own, dated September 14, 2007, entitled "Guns after Death". He adopted the same great graphic supplied to me by Joshua G. Prince.

Speaking of Josh, he offered to send to anyone who would email a request to him [joshua@princelaw.com], a copy of his original, unedited, and less politically-correct (my words) version of his article. So, contact him if you are interested.

I also received an email message in response to this post from a former student & a good friend, Stephen R. Maitland, Esq., now a member of the staff of the Army Heritage and Educational Center, in Carlisle, PA.

He offered owners of weapons an opportunity to consider:

[Y]ou can let people know that, as a federal museum facility, the Army Heritage and Education Center in Carlisle can accept working machine guns into its collection.

Whether AHEC accepts a weapon depends on the history and condition of the weapon and how many of that type we have.

So before sawing through the receiver, please advise heirs and attorneys to check with us first!

We can also accept Medals of Honor, which, by statute, may not be sold.

I note that the Army Heritage and Education Center is supported by a non-profit foundation, the Army Heritage Center Foundation, also headquartered in Carlisle, PA.

Steve's contact information is: Stephen R. Maitland, Esq., Development Officer, Army Heritage Center Foundation, P.O. Box 839, Carlisle, PA 17013-0839; Phone: 717-258-1102, Ext.25, or or 1 866 ARMY HTG (toll free); Fax: Email: smaitland@armyheritage.org.

Update: 10/19/07:

Joshua G. Prince wrote a sequel to his original posting, which is entitled "Grandpop's Machine Gun in the Chest, Part II". I posted it on this Blog on Friday, October 19, 2007. See: "I Inventory the SBR, AOW, DD, & Suppressor at . . .".

Update: 06/27/08:

See: "Right to Keep and Bear Arms: Part I", posted on this Blog.

Planning for Military Personnel

An article entitled "Financial planning challenge looms large for those in military", published by the Dallas Morning News, and made available online by the Boston Globe, on October 1, 2006, examines the broader financial & legal planning needs of members of the military and their families. The article is available online here.

Due to their jobs and stations, the futures of military personnel are less predictable than those of civilians:

"The relative uncertainty is the key thing that does make it critical to plan," said Joseph Montanaro, a certified financial planner at USAA Financial Planning Services and a lieutenant colonel in the Army Reserve. "In the military, we say, `Let's get our house in order before the order comes.' "

Worse, the career of a soldier, Marine, sailor, or airman can end in injury or death.

"You've got to go into a mobilization with that mindset -- just in case, how do I take care of my family to the best of my ability in case I don't come back or in case I don't come back whole?" said Jeff Pugh, a police officer in Arlington, Texas, and a major in the Army Reserve.

The article discusses common concerns and needs of a service man or woman, including debt counseling, direct deposit, electronic payments, savings, and legal documentation. One aspect of such documentation is a "living will", which has received special attention lately in the press. See my previous posting here.

The article concludes by offering some practical points:

Make sure your bank and credit accounts are joint .
* * *
Draw up important documents, such as your will, durable power of attorney, medical power of attorney, and living will.
* * *
Review your insurance policies.
* * *
Keep saving consistently.

The article further cites Military Money magazine as a helpful source of practical, personal advice for service personnel and their families.

Caveat: Planning still may not avoid controversy, as indicated in an article by Thomas W. Krause published October 4, 2006, in The Tampa Tribune entitled "Injured Marine's Care Divides Family", available here:

The family of a Pasco County sheriff's deputy who was severely injured while serving in Iraq is at odds over who should make his medical and legal decisions.

In December 2004, less than three weeks before Joshua Cooley was called to active duty, he got married. Christina Cooley's lawyer said Joshua assigned her power of attorney before he was sent to Iraq.

Cooley's mother and brother, however, think it would be in his best interest if they made his decisions. The two sides are in court fighting over guardianship.

The guardianship division of the Hillsborough County Circuit Court temporarily assigned Cooley an attorney to make his decisions while the family works out the details. A hearing scheduled for Tuesday was postponed so family members could try to work out a compromise.

"I have always found that mercy bears richer fruits than strict justice."
-- Abraham Lincoln (1809-1865), from a speech in Washington D.C., 1865

Seniors Salute Soldier

On October 10, 2006, the Lehigh Valley's Express-Times posted a news item, by Meghan Smith, on the Penn-Live website entitled "'One of the Lucky Ones' Meets Benefactors". It tells about a senior citizen group known as the Autumn Club, that had "adopted" a Pennsylvania National Guardsman during his military service in Iraq, and then held a luncheon in his honor upon his recent return home.

Staff Sgt. Wilberto Lucas, of Bethlehem's 228th Forward Service Battalion, received a hero's welcome and a standing ovation during a luncheon at the Bethlehem Township Community Center with about 60 members of the township's Autumn Club. The seniors had shipped to him weekly packages full of treats and supplies during his tour of duty. Lucas, who lives in the township, spent 18 months in Iraq before returning home to his wife and children this summer.

The Guardsman is quoted in the article expressing his appreciation to the seniors:

"I'm one of the lucky ones who made it back," the 45-year-old small engine mechanic told the seniors, who shipped him weekly care packages stuffed with treats and supplies during his tour of duty.

Calling their efforts heartwarming, an emotional Lucas said that Monday was his first opportunity since coming home this summer to match faces to the names he'd read many times in cards and letters. * * *

The emotional and physical toll of that kind of war, he said, has been hard for the husband and father of seven to take. * * *

As the guardsman was speaking, a man passing through the lobby extended his hand to Lucas.

"I just want to thank you for your service," the man said as he shook Lucas' hand.

The article compared the support that the seniors had provided to this Guardsman overseas, to the support that seasoned military personnel provide, while posted, to younger and less experienced soldiers.

* * * "I know that I've saved a lot of lives and it's important for the older generation to help the younger generation get through this."

The guidance he offers younger comrades, he said, is like the encouragement the Autumn Club seniors gave to him.

"They've been around for other wars. They survived it," Lucas said of the seniors. "We should learn from them. They could teach all of us something."

After logging through the Penn-Live portal, I found the complete article here.

Senior groups like the "Autumn Club" are spread throughout Pennsylvania, many located at Senior Community Centers. In a description found online here, the PA Department of Aging notes:

Statewide, over 650 full and part time Senior Community Centers offer people age 60 and older, and their spouses, a place to go for nutritious meals, social activities, and a range of programs such as health screenings, health and consumer education, creative arts, exercise, and other special events which are unique to individual centers.

Senior Community Centers often work with a variety of local organizations, and provide access to other community services as well. Centers also offer volunteer opportunities where older people can contribute their experience and skills in meaningful and satisfying ways.

Of the 650 Senior Community Centers approximately 100 are known as "satellite" centers where people age 60 and over, and their spouses, can get together, socialize, and enjoy group dining.

The Department advises: "For information about the Senior Community Center in your area, contact the Area Agency on Aging serving your county, or visit the website of the Pennsylvania Senior Centers at www.paseniorcenters.org."

"Living Wills" for Military Personnel

I am "back-filling" my Friday post with an item that I found originally last week, but did not post, thinking it was not relevant to this blog. Instead, I had emailed it to Professor Gerry W. Beyer; and he had noted it on the Wills, Trusts & Estates Prof Blog, which he moderates, in a posting found online here.

However, over the weekend, I reconsidered the importance of this article for Pennsylvanians.

I quote part of Prof. Beyer's post; and then I'll add my further thoughts.

Battlefield Doctors and Living Wills

Should battlefield doctors know whether an injured soldier has executed a living will? That is the issue being debated at a symposium sponsored by the Army's Wounded Warrior Program.

The following excerpts are from Gregg Zoroya, Army explores issue of living wills as more return from war in comas:

With technology as good as it is, they can keep that soldier alive, but they can't put their hands on a digitized piece of paper" containing a do-not-resuscitate order, says Ed Salau, a former Army lieutenant who lost his left leg during combat in Iraq. * * *

Troops can fill out living wills instructing doctors to withhold care. Those at the symposium recommended that troops be better educated about the process and that the wills be accessible to doctors.

* * *

See also Gregg Zoroya, Families bear catastrophic war wounds, USA Today, Sept. 25, 2006, at 8A:

One recommendation from the symposium was for the military to more aggressively urge soldiers to fill out living wills containing directives about whether medical treatment should be withheld in the event of a dire brain injury.

The matter of "advance care directives" for service personnel is important to Pennsylvanians (and should be noted on this blog) -- because so many of our Commonwealth's citizens serve in the military. Whether full-time or part-time, many maintain a home and their residence in this Commonwealth. And many face a potentially imminent "end-of-life" decision situation due to their service.

For example, the Pennsylvania National Guard, which includes the Pennsylvania Air National Guard and the Pennsylvania Army National Guard, is the largest and (we PA people believe) the best Guard unit in the nation. Today it is tasked with more duties, for longer times of service, than any time in its history. It is supported by the Pennsylvania National Guard Associations, and also by certain state government initiatives, including those proposed by Governor Rendell in April, 2005, as described online here.

These service personnel must address the issue raised in the article. For more information, see "Living Wills: A Matter of Life or Death", by Elaine Wilson, Air Force Public Information Office, published on July 12, 2005, by the Family Military Network, and found online here.

Whatever the differences, Mr. Brasher said he recommends a living will based on where people live, whether a resident or not, to remove the “guess work.”

“It’s best to have one for the state you live in or (move) to so the local doctor has a document he’s familiar with,” he said.

However, since each state has its own format, the legal office [in Texas] includes a header that asks for the will to be recognized nationwide.

This article notes that military personnel are entitled to free preparation of a "living will": "Any military legal assistance office can prepare living wills free of charge to active-duty servicemembers, family members, retirees and reservists on active duty for 30 or more days."