Detailed Answer
Short answer: In California, firearms that belonged to a person who died are treated as the decedent’s personal property. The person appointed to administer the estate (executor, personal representative, or trustee) must identify and secure the firearms, determine who is entitled to them under the will, trust, or intestate succession rules, and then ensure any transfer complies with California and federal firearms laws (including background checks and prohibited-person rules). If an intended recipient is legally prohibited from receiving or possessing firearms, the administrator must arrange lawful disposal (sale to a licensed dealer, transfer to an eligible person, or surrender to law enforcement).
How probate interacts with firearms
Probate is the legal process to collect a decedent’s assets, pay debts, and distribute property. If firearms are part of the decedent’s estate and the estate goes through probate, the personal representative follows the probate court’s orders and the decedent’s testamentary documents (will or trust) when distributing property. For general information about opening and administering probate in California, see the California Courts probate self-help page: https://www.courts.ca.gov/selfhelp-probate.htm.
Key legal requirements that affect firearm transfers
- Prohibited persons: California law forbids certain people from possessing firearms, such as convicted felons and others identified by Penal Code § 29800. Before transferring a firearm, the estate representative should confirm the recipient is not legally prohibited. See California Penal Code § 29800: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=29800.&lawCode=PEN.
- Dealer involvement and background checks: California generally requires transfers of firearms to go through a licensed firearms dealer so the Department of Justice can conduct a background check and complete a Dealer’s Record of Sale (DROS). The California Department of Justice supervises those processes. See the California Attorney General’s firearms pages for transfer rules and DROS information: https://oag.ca.gov/firearms.
- Assault weapon and magazine restrictions: Some firearms (certain “assault weapons”) and high-capacity magazines are restricted or banned in California. The administrator must ensure any intended transfer is lawful under state restrictions.
Typical process to transfer a decedent’s firearm during probate
- Secure the firearms. The person in possession should store them safely and separately from family traffic to prevent unauthorized access.
- Identify ownership and instructions. Review the will, trust, or other estate documents to see who inherits the firearms. If the decedent named a personal representative or successor trustee, that person has duty to follow the instrument and applicable law.
- If probate is required, open probate and obtain authority. If the estate must go through probate, the personal representative should petition the probate court and obtain letters testamentary or letters of administration authorizing them to act for the estate. See California Courts: https://www.courts.ca.gov/selfhelp-probate.htm.
- Confirm the recipient’s legal eligibility. Before handing over a firearm, confirm the named beneficiary or transferee is permitted to possess firearms under California and federal law. If the recipient may be disqualified (for example, felony conviction or certain domestic violence restraining orders), do not transfer the firearm.
- Use a licensed dealer for the transfer when required. In many cases the estate will transfer the gun through a Federal Firearms Licensee (FFL) who will process the transaction, complete the required forms (including the federal Form 4473), and submit the DROS so the California DOJ can run the background check and waiting period, if applicable.
- If the transferee is an immediate family member and state law allows, discuss whether a direct transfer exception or special procedure applies. (Because rules change and exceptions are narrow, get current guidance from the California DOJ or a lawyer.)
- If the transferee is prohibited, arrange lawful disposition. Options include selling the firearm to a licensed dealer, surrendering it to local law enforcement, or transferring it to an eligible third party per law and court orders.
- Document the transfer in the estate records. Keep records of any DROS paperwork, receipts from a dealer, or correspondence with court when the court authorizes disposition.
Common probate scenarios
Decedent leaves a gun to a named beneficiary in a will: The personal representative follows the will and arranges a lawful transfer. That usually means the beneficiary must complete the DOJ/FFL transfer process and pass the background check before receiving the firearm.
Decedent had a revocable trust: If firearms are held in a trust, the successor trustee follows the trust instructions. The trustee still must comply with state/federal firearms transfer rules and verify the recipient’s eligibility.
No will or trust (intestate): Firearms pass to heirs under California’s intestacy laws. The estate representative distributes property according to those laws, but any physical transfer must still comply with firearms laws.
Special concerns
- If a proposed recipient is under a restraining order, domestic violence conviction, or has a recent commitment for mental health issues, they may be federally or state-prohibited from possessing firearms. Do not transfer; consult counsel or law enforcement.
- Local sheriff or police departments sometimes accept surrendered firearms; practices vary by agency. Contact local law enforcement for their process.
- If the estate includes many firearms or valuable/collectible guns, consider using a licensed firearms dealer or appraiser to handle sale and documentation.
Penalties for unlawful transfers
Transferring a firearm to someone who is prohibited can expose the transferor to criminal liability under California and federal law. The personal representative or anyone who knowingly transfers a gun to a prohibited person risks criminal prosecution.
Where to get authoritative, up-to-date information
- California Attorney General, Firearms Division: https://oag.ca.gov/firearms
- California Courts, probate self-help: https://www.courts.ca.gov/selfhelp-probate.htm
- California Penal Code (example: prohibited persons): Penal Code § 29800
- Federal firearms statutes and ATF guidance (for federal background/transfer rules): ATF website: https://www.atf.gov/firearms
Disclaimer: I am not a lawyer. This is general information, not legal advice. The law changes, and local practices vary. For case-specific guidance, consult a licensed California probate attorney or contact the California Department of Justice Firearms Bureau.
Helpful Hints
- Secure all firearms immediately and keep them unloaded until transferred lawfully.
- Do not transfer a firearm to anyone without confirming they are legally allowed to possess it.
- When in doubt, contact a local FFL, the county sheriff, or a probate attorney before moving or transferring firearms.
- Keep written records: receipts, DROS paperwork, and any court authorizations related to firearm disposition.
- If an heir is prohibited from owning firearms, act promptly to transfer the gun to a lawful owner or surrender it—inaction can create criminal exposure for the estate representative.
- Consider hiring a probate attorney when the estate includes multiple or high-value firearms, or when the lawful recipient is contested.