C. Raymond Radigan and Peter K. Kelly
C. Raymond Radigan and Peter K. Kelly ()

Early in January 2013 the New York State Legislature enacted a package of gun control legislation in response to the horrors of the Newtown, Conn., massacre. This act has commonly been referred to as the New York SAFE Act (Secure Ammunition and Firearms Enforcement Act).1 The act is a major revision of New York gun laws particularly the reinstitution of the expired federal “assault weapon ban” in New York. The federal assault weapon ban was enacted in 1994 and expired on Sept. 13, 2004.

This statute has important provisions for regulation of weapons owned by a decedent which must be disposed of by his fiduciary after death and also weapons that are specifically bequeathed under a decedent’s will. Aside from the assault weapon ban, regulation of the sale and purchase of ammunition, the possession of certain magazines and ammunition feeding devices, safe storage requirement and possession of weapons and/or ammunition by persons with mental health issues, all impact a fiduciary who possesses and must dispose of these weapons.

A new Surrogate’s Court Procedure Act (SCPA) 2509 has been added to require that whenever a fiduciary (or an attorney of record) by regulation, rule or statute must file an inventory of assets, such inventory must include a particularized description of every firearm, shotgun, and rifle, as those terms are defined in the Penal Law. Notice to fiduciaries of their obligation under the statute is being provided in forms sent to fiduciaries upon their appointment by the Unified Courts System.

Such notice also advises the fiduciaries that they must also mail a copy of the firearms inventory to the Division of Criminal Justice Services in Albany as required under SCPA 2509. The Office of Court Administration has also promulgated a standard form for firearms inventory, Form I-2 of the official forms of the Surrogates Court. The firearms inventory form requires a listing of each and every weapon, the make, the model, the caliber or gauge, the serial number, and the valuation. It requires a signature by an attorney and a certification by the fiduciary.

The firearms inventory form indicates that the inventory will be filed with the Surrogate Court, but will be kept in a secure location separate from the public estate file and will be made available for inspection only to persons interested in the proceeding and/or their counsel unless otherwise ordered by the court. Thus, the firearms inventory is not available to the general public.

Firearms are defined in Penal Law §265.00 and do not include shotguns and rifles. Shotguns and rifles are separately defined in §265.00 of the Penal Law.

A “firearm” is defined in the Penal Law as any pistol or revolver, a “sawed off” shotgun less than an 18-inch barrel, a “sawed off” rifle less than a 16-inch barrel, any modified or altered shotgun or rifle less than 26 inches in an overall length and an assault weapon. Penal Law §265.00(3). The definition of an “assault weapon” has been amended. Penal Law §265.00(22). The new definition of an assault weapon is more expansive than the definition in the now expired federal assault weapon ban and includes any semi-automatic weapon with a detachable magazine and any single designated feature commonly associated with military weapons. See Laws of 2013, Chapter 1, §37.

A “rifle” is defined in the Penal Law as any weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned or made or remade to use the energy of the explosive in a fixed metallic cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger. Penal Law §265.00(11).

A “shotgun” is defined in the Penal Law as a weapon designed or redesigned, made or remade and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed shotgun shell to fire through a smooth bore either a number of ball shots or single projectile for each single pull of the trigger. Penal Law §265.00(12).

Transfers and Safe Storage

Possession of shotguns or rifles in certain parts of the State of New York (except for local laws prohibiting the same) are not prohibited, and a person who possesses any of them need not be licensed. In an effort to control the disposition of weapons generally, including rifles and shotguns, the Legislature has enacted a crime Penal Law §265.17 titled “Illegal Disposal of a Weapon.” Criminal sale or disposal of a firearm, rifle or shotgun to a person knowing that that person is prohibited by law from possessing such firearm, rifle or shotgun, is now a Class D Felony.

Under the new statute private sales of guns require federal background checks of the purchaser under all circumstances except for sales to immediate families. Thus, executors as a private seller of a firearm, rifle or shotgun may not transfer such weapon to the buyer unless they have obtained a federal criminal background check of the buyer. Transfers between immediate family members are exempt from the requirements of this section. An issue is immediately apparent as to whether or not a bequest of a particular weapon to a specific beneficiary who is not a member of the immediate family of the decedent would be a private sale governed by the requirements of the new statute and punishable as a Class D Felony upon a violation of such sale to a person not authorized to possess a firearm, rifle, shotgun.

The statute also raises questions with respect to the continuation of New York’s assault weapon ban which requires all assault weapons to be registered and prohibits the owners of these banned weapons from transferring the weapons to anyone other than a firearms dealer or an out-of-state buyer. Similar criminal penalties exist for transfer of an assault weapon by an owner, which obviously could include a fiduciary of a decedent who possessed these types of assault weapons.

In addition, the statute requires registration of ammunition and prohibits magazines holding more than seven rounds of ammunition. Note that larger magazines existing before the effective date of the legislation are grandfathered in but may only contain seven rounds. The sellers of any ammunition must register with the Superintendent of the State Police. Should the decedent be in possession of an assault rifle or a magazine which exceeds seven rounds, the fiduciary should immediately consider registration with the New York State Police and prior to the sale of the ammunition consider sale to a licensed commercial dealer for the purchase of weapons.

The new statute also provides in great detail for safe storage requirements for firearms, rifles and shotguns. A fiduciary who may come into possession of a firearm, rifle or shotgun owned by a decedent is bound by the safe storage provisions in the Penal Law §265.45 and must take appropriate action with respect to the safe storage of those weapons, particularly where they are possessed in a home or dwelling where a person prohibited from possession of such weapons resides, such as an infant, a felon, a mentally defective person, a person who has been convicted of a crime of domestic violence, or a person subject to an order of protection.

Constitutional Challenges

The constitutionality of various provisions of the SAFE Act have been challenged in the federal District Court of Western New York by various gun owner associations, manufacturers, suppliers and some individuals.2 That court upheld the SAFE Act’s ban on assault weapons and large capacity magazines as constitutional, holding that it does not infringe on the plaintiff’s Second Amendment rights. However, the court did find that provisions of the act relating to the seven-round limit failed the constitutional test.

Additionally, that court found the SAFE Act’s requirement that all ammunition sales be conducted in-person (and not over the Internet or by mail order) does not violate the Commerce Clause of the U.S. Constitution. The plaintiffs in that case have publicly expressed an intention to appeal the portion of the opinion which upheld the SAFE Act.

Burdens on Fiduciary

The intention of this statute is to identify individuals who purchase unusually high volumes of ammunition or weapons to ensure the registration of such weapons and to require every licensed holder to recertify their gun licenses every five years. The legislation also intends to create electronic databases which will permit regular matching of state records of prohibited persons as against other databases to ensure that licensing records are proper and up to date. While the statute in its many ramifications has laudable goals, it presents a minefield of dangers for a fiduciary charged with disposing of weapons and ammunition owned or possessed by a decedent and which may or may not have been bequeathed specifically in the decedent’s will. It is recommended that in the event that a fiduciary comes into possession of weapons of the decedent that consultation with a licensed gun dealer to dispose of such weapons promptly is most appropriate.

Because previous exemptions for law enforcement and licensed gun dealers still exist, a fiduciary in possession of weapons and/or ammunition should carefully consider disposition of such weapons or ammunition through them. Where the weapons or ammunition are valuable, a licensed gun dealer is appropriate. If the weapons or ammunition must just be disposed of for safety, turning them over to the police is also appropriate. Transferring weapons or ammunition to another buyer without obtaining a background check is fraught with concern for criminal and civil liability for a fiduciary. Particularly with respect to assault weapons unless lawfully removed from the state of New York with notification to the state, an assault weapon becomes contraband upon the death of the registered owner.

Safe storage of weapons or ammunition is particularly burdensome as it places a requirement on the fiduciary in possession to secure the weapon to protect it from a person not legally entitled to possess a gun and to be aware of the presence in the dwelling where the weapon is stored of such a person.

There are provisions of Penal Law which are defenses or exemptions with respect to crimes defined in that article of the Penal Law which may be applicable in certain circumstances related to the acts of a fiduciary in disposing, storing, selling and inventorying weapons of a decedent. Suffice it to say, that this area of the law has become highly regulated in this state and a fiduciary should act with extreme caution with respect to firearms, rifles and shotguns of a decedent.

C. Raymond Radigan is the former Surrogate of Nassau County and of counsel to Ruskin Moscou Faltischek. He can be contacted at crayradigan@rmfpc.com. Peter K. Kelly is of counsel to Ruskin Moscou and can be contacted at pkelly@rmfpc.com.


1. Ch 1, L.2013, effective 1-15-2013.

2. NYSRPA v. Cuomo, NYLJ, Feb. 1, 2014, NYLJ 1202635549147 (WDNY J. Skretny).