Disclaimer

This article is informational only and is not legal advice. It does not create an attorney-client relationship. For help applying these ideas to your situation, consult a licensed Montana attorney familiar with probate and firearms law.

Detailed Answer — Overview of the legal requirements and process in Montana

When someone dies in Montana and leaves firearms among their belongings, the personal representative (executor or administrator) must treat those firearms as estate property during probate. The basic legal duties are:

1. Identify and safeguard the firearms as part of the estate inventory.
2. Determine whether the will or probate court orders direct specific transfers or sales of those firearms.
3. Confirm the legal ability of any proposed transferee to receive firearms under federal and state law before completing a transfer.
4. Comply with any court orders, Montana probate procedures, and applicable federal transfer requirements.

Key legal authorities you should review:

• Montana probate rules and guidance (Montana statutes and probate procedures) — see the Montana Code Annotated and Montana Courts probate resources: https://leg.mt.gov/bills/mca/ and https://courts.mt.gov/selfhelp/Probate.
• Federal firearms law that prohibits transfer of firearms to certain persons (18 U.S.C. § 922 and related provisions): https://www.law.cornell.edu/uscode/text/18/922. This federal law is crucial because it makes it a crime to transfer firearms to persons who are felons, subject to certain protective orders, adjudicated mentally defective, undocumented aliens, and others listed in §922(g).

Step-by-step process for the personal representative

Below is a practical process that follows Montana probate practice and federal firearms restrictions.

1. Locate and secure the firearms. Treat the guns like other valuable or potentially dangerous estate property. Keep them unloaded, locked, and stored safely. Make an inventory with serial numbers and descriptions.
2. Check the will and probate orders. If the will specifically bequeaths one or more firearms to a named beneficiary, that direction guides distribution subject to legal eligibility and court supervision. If there is no specific bequest, the firearms are part of the residuary estate to be distributed under Montana probate law or intestacy rules.
3. Confirm the transferee’s eligibility under federal law. Before transferring any firearm, verify that the person who will receive it is not prohibited under 18 U.S.C. § 922(g). Examples of prohibitions include: felony convictions, certain domestic violence misdemeanor convictions, dishonorable military discharges, being subject to certain protection orders, or adjudicated mental incompetence. If a proposed recipient is a prohibited person, the personal representative must not give them the firearm and should consult counsel and the court.
4. Follow Montana court procedures for distribution. If the will directs transfer or if the court approves an estate distribution, document the transfer in the estate records. If there is any dispute among heirs or potential illegality, the personal representative should seek court instructions (e.g., a petition for instructions or for specific distribution authority).
5. Use an FFL when required by state or practical considerations. Montana generally does not require state-administered universal background checks for all private transfers, but federal law governs interstate transfers and licensed-dealer transfers. If the transfer crosses state lines, or you use a federal firearms licensee (FFL) to facilitate a sale or transfer, the receiving party usually must pass the NICS/background check and comply with the FFL’s procedures. Many personal representatives choose to process transfers through an FFL to document and verify eligibility.
6. Interstate transfers and shipping. If the beneficiary lives outside Montana, the transfer likely must go through an FFL in the beneficiary’s state. Shipping firearms across state lines without following federal rules can lead to criminal liability.
7. Selling estate firearms. If the estate sells firearms (to raise cash for debts, taxes, or distributions), the personal representative must follow applicable transfer rules and document the sale. Proceeds belong to the estate and must be handled in the estate accounting.
8. When in doubt, seek a court order. If you encounter uncertainty — contested ownership, possible prohibited transferee, or unclear bequests — petition the probate court for instructions or an order authorizing a particular transfer or sale. A court order shields the personal representative from liability for good-faith actions taken under that order.

Common legal complications and how Montana law interacts with federal law

• Montana probate procedure determines who legally receives estate property. But federal firearms law determines who may legally possess or receive firearms. Both sets of law control: even if the probate court orders a transfer, federal law can still bar the transfer to a prohibited person.
• If the person who would inherit a firearm is disqualified under federal law, the personal representative must not transfer the firearm to them. The representative should seek court guidance on alternative disposition — for example, sale to a qualified buyer or delivery to law enforcement — and handle sale proceeds as estate assets.
• Montana statutes related to protective orders and domestic violence can affect firearm possession. If a transferee is subject to an order that prohibits firearm possession, do not transfer the firearm to them. Check Montana’s protective-order rules and coordinate with the court and local law enforcement.
• Records. Keep complete records of inventories, transfer documents, receipts, and court orders. Good documentation helps satisfy probate accounting duties and protects against later claims.

Penalties for improper transfer

Improperly transferring a firearm to a prohibited person can lead to federal criminal charges under 18 U.S.C. § 922, including fines and imprisonment. Montana also has criminal statutes governing unlawful possession and transfer; consult Montana statutory resources and an attorney if you suspect a prohibited transfer.

Helpful Hints — Practical checklist for Montana personal representatives

• Inventory guns immediately: include make, model, caliber, serial number, and condition.
• Secure firearms at the estate property or a trusted, secure location. Avoid leaving guns unsecured during probate.
• Before transferring, ask the recipient to complete any reasonable eligibility documentation and consider using an FFL to run a background check when you or the beneficiary prefer documented verification.
• If a beneficiary lives out-of-state, arrange transfer through an FFL in the beneficiary’s state and follow federal interstate-transfer rules.
• If the will is silent or heirs dispute ownership, ask the probate court for directions before transferring or disposing of firearms.
• Do not transfer firearms to anyone who appears to be a prohibited person under federal law; if unsure, consult a lawyer or use an FFL to run the check.
• Keep receipts and written transfer documentation in the estate file so you can show the probate court what you did and why.
• If you suspect a firearm poses an immediate danger (e.g., to self or others), contact local law enforcement for safe handling and potential seizure — do not try to resolve the situation without professionals.
• When in doubt, consult a Montana probate attorney and, if needed, a firearms-law attorney. A short attorney consultation can avoid criminal exposure and estate disputes.