Detailed Answer
Short summary: When someone dies in South Dakota, transferring their firearms during probate requires following both South Dakota probate rules and applicable federal firearms rules. Non-National Firearms Act (NFA) firearms (typical rifles, shotguns, handguns) are handled under state probate and federal transfer rules; NFA firearms (e.g., short-barreled rifles, suppressors, machine guns) require additional ATF paperwork and approval. The personal representative (executor/administrator) must secure the guns, check the decedent’s will or South Dakota intestacy rules, confirm the proposed transferee is legally allowed to possess firearms, and document the transfer in the probate file.
1) Who controls the decedent’s firearms during probate?
The person appointed by the probate court as the personal representative (executor or administrator) has authority to take control of the decedent’s personal property, including firearms, and to manage, inventory, and distribute that property according to the will or state intestacy law. See South Dakota probate law (Title 29A) for the personal representative’s duties and powers: South Dakota Codified Laws, Title 29A (Probate).
2) Immediate steps the personal representative should take
- Secure all firearms safely and separately from ammunition. Safety first: treat all guns as loaded until verified otherwise.
- Inventory and photograph each firearm (make, model, serial number) and note whether each is an NFA item (suppressor, short-barreled rifle/shotgun, machine gun, etc.).
- Check the will or beneficiary designations and South Dakota intestacy rules to learn who is to receive each firearm. (Probate statutes: SDCL Title 29A.)
- Confirm whether any transferee is legally prohibited from receiving or possessing firearms (e.g., felony convictions, certain domestic violence restraining orders, involuntary commitment). Federal prohibitions are in 18 U.S.C. § 922: 18 U.S.C. § 922.
3) Transfers of non‑NFA firearms (typical rifles, shotguns, handguns)
South Dakota does not require a state-level permit to buy most firearms, but federal rules still apply when an FFL (federal firearms licensee) performs a transfer. Practical points:
- If the recipient is a beneficiary under the will or receives the firearm by intestate succession, the personal representative typically can transfer possession after confirming the recipient is legally permitted to possess firearms.
- If you use an FFL to move a handgun or otherwise effectuate a transfer, the buyer/recipient will usually need to complete ATF Form 4473 and undergo a NICS check if the transfer is an FFL-to-FFL sale or an FFL sell/transfer. See the FBI’s NICS information: FBI NICS.
- If you have questions about whether a private transfer requires an FFL or background check in South Dakota, contact a local FFL or probate attorney. Keep careful records of the transfer in the probate file.
4) Transfers of NFA firearms (suppressors, short-barreled rifles/shotguns, machine guns)
NFA items are governed by federal law (the National Firearms Act). A transfer of NFA property after death usually requires ATF notification and, in many cases, prior ATF approval and an appropriate ATF form (for example, an ATF transfer or registration form such as Form 5 or Form 4, depending on whether a tax is due). Practical points:
- If an heir receives an NFA item by bequest or intestate succession, the transfer often can be completed via ATF procedures that recognize transfers pursuant to a will or court order. That often requires submitting the correct ATF application and waiting for ATF approval. See ATF guidance and forms at the ATF NFA resource center: ATF NFA Resource Center.
- Do not transfer physical possession of an NFA item to an heir until the proper ATF forms are completed and approved, unless the item is exempted by ATF procedures for estate administration. Transferring an NFA item without required federal approval can be a serious federal offense.
- Timing: ATF approvals can take weeks to months. Plan accordingly and consult an attorney or an ATF‑registered dealer (Class 3 dealer) to handle the transfer paperwork.
5) What if the intended recipient is prohibited from owning firearms?
If a beneficiary or heir is legally prohibited from owning firearms, the personal representative cannot lawfully transfer the guns to that person. Options include:
- Sell the firearms to a permitted buyer through an FFL (conduct the necessary background checks and paperwork), with sale proceeds added to the estate.
- Surrender the firearms to local law enforcement, subject to local agency procedures.
- Seek court instructions from the probate court if the right course is unclear.
6) Documentation and record-keeping
Keep a written inventory, photographic evidence, transfer receipts, ATF forms (if applicable), and any correspondence regarding the firearms in the probate file. The personal representative should document each step and be prepared to show the probate court how firearms were handled.
7) When to get legal or dealer help
Because firearms law crosses state probate rules and federal firearms regulations, consider getting help when:
- The estate includes NFA firearms.
- A proposed transferee’s eligibility to own firearms is uncertain.
- The will, beneficiary designation, or estate plan is ambiguous about firearms.
- You need ATF forms filed correctly (especially for NFA items).
For South Dakota probate questions see SDCL Title 29A (Probate): https://sdlegislature.gov/Statutes/Codified_Laws/Default.aspx?Title=29A. For South Dakota firearms statutes, consult SDCL Title 23 (Crimes and Offenses related to weapons): https://sdlegislature.gov/Statutes/Codified_Laws/Default.aspx?Title=23. For federal rules affecting transfers and prohibitions see 18 U.S.C. § 922: https://www.law.cornell.edu/uscode/text/18/922 and ATF NFA resources: https://www.atf.gov/firearms/nfa-resource-center.
Helpful Hints
- Secure firearms immediately and treat them as evidence of estate property until distributed.
- Identify NFA items early and consult an ATF‑knowledgeable dealer or attorney before moving them.
- Confirm beneficiary or heir eligibility before transfer. A simple online background check service is not a substitute for required legal checks—use an FFL or the proper federal procedures when required.
- Keep clear written records: inventories, photos, receipts, and court orders. Good records protect the personal representative from claims later.
- If in doubt, ask the probate court for instructions (a court order can protect a personal representative who follows it) or get a local probate/estate attorney familiar with firearms transfers.
- Don’t attempt to transfer NFA items yourself without the correct ATF approvals—penalties for improper transfer can be severe.
- Contact local law enforcement or a licensed FFL for temporary storage if you cannot immediately secure the firearms safely.
Disclaimer: This information is a general educational overview and not legal advice. It does not create an attorney-client relationship. For advice about a specific estate or firearm transfer in South Dakota, consult a South Dakota probate attorney or a licensed firearms dealer familiar with ATF procedures.