True. Morbid picture. Morbid topic. What can I say. I have been watching reruns of Six Feet Under, so maybe that explains my need to write about wills and trusts.
Estate planning is not a favorite subject for most people. When it comes to a discussion about death, avoidance tends to be the natural response. People hate talking about what will happen to their property once they die. But writers constantly tackle uncomfortable subjects like death, right? So I have faith that you can tackle your own estate planning.
While estate planning can be overwhelming and stressful, it is essential for disposing of estate assets and tying up affairs. Plus writers have additional assets most do not — intellectual property rights that make estate planning even more essential so your literary works are treated per your wishes posthumously.
Wait. Back up. Writers have intellectual property?
They do. The copyright to their literary works. This does not mean the physical copy of your literary works, which can be disposed of like any other tangible property via your estate plan. As we have discussed before in previous articles, a copyright last for the author’s life plus 70 years. That is a long window for an asset to remain viable. So you might want to ensure your intellectual property is properly cared for after your death.
Every adult, whether a writer or non-writer, should have a valid will or trust.
If you die without a valid will or trust, your estate distribution is governed by the intestate succession statutes and will pass to your heirs according to the laws of the state where you resided at the time of death. All fifty states have such laws. While the laws differ from state to state, this usually means your surviving spouse is entitled to all or a substantial portion of your estate (after expenses and taxes). Sometimes, surviving children also benefit too. If you are not married, most state laws require your property pass to living relatives like parents and siblings. Depending on the state laws, distribution may or may not be how you wish, hence the need to have a properly drafted will or trust to guide the distribution of your estate as you want.
Preparing a will or trust is not a difficult process. Both are useful estate planning devices. Both serve different purposes depending on the needs of the testator (i.e., the person creating the will or trust).
Wills and trusts each have advantages and disadvantages.
A will goes into effect when you die. The goal of a will is to provide directions for your heirs and the state for how your property is to be distributed after your death. An executor (your legal representative named in the will) is appointed to carry out your wishes as instructed in the will. A will can only dispose of property that is in your name when you die. This means any property held in joint tenancy or in a trust cannot be included in a will. A will goes through probate, meaning a court supervises the administration of the will, determines if the will is valid, and determines if the executor is distributing the property as set forth by the you.
A trust (whether a living trust or an irrevocable trust) goes into effect when created and can distribute property before your death or afterwards. A trust can also be created once you die as set forth in the will (testamentary trust). A trust appoints a trustee (who could be you, or another person or institution like a bank or law firm) to hold legal title to your property for the benefit of one or more people known as beneficiaries. Typically, the beneficiaries can be divided into two sets: one for people who receive income and/or property from the trust while alive, and another for people who receive income and/or property when the first set of beneficiaries are dead). A trust governs and distributes only property transferred into the trust (i.e., property in the name of the trust, like a deed to property held in the name of the Living Trust of Joe Smith). One of the biggest benefits about a trust is it avoids probate, which typically is a time-consuming and expensive process for the beneficiaries of your estate.
Do you need both an executor and a literary trustee?
Whether you are using a will or a trust, both vehicles require someone appointed to administer the estate. The executor has a fiduciary responsibility for settling the estate after your death per the directions in the will. The executor of the will collects and identifies the estate property, locates creditors, pays expenses and taxes, and acts as business manager of the estate. In a trust, the executor governs the management of the property and assets as set forth in the terms of the trust, whether before and/or after your death, as well as locating creditors, and paying expenses and taxes. Usually the executor is a spouse, relative, or close friend.
Writers, however, should consider appointing a literary executor (or literary trustee) too. Literary executors are co-executors who are in charge of your literary works. While this can be the same person as the executor, sometimes managing literary works requires a need for separation between the two roles. A literary executor might need to negotiate contracts with publishers, maintain copyrights, collect and distribute royalties, and arrange for publication of any unpublished manuscripts or any other literary material you have stuffed in that desk drawer or on your computer hard drive (think letters and emails and unfinished/unpublished manuscripts).
A literary executor might also manage your on-line life, including blogs and social media. So depending on your estate needs, you may want to designate your spouse or relative as your literary executor, or you may want to retain someone who does not have a personal interest in your estate, like someone in a trust department of a bank or other financial institutions, or an agent, lawyer, accountant, or fellow writer. Your best choice would be a literary executor with business skills and experience in the publishing field.
How do you structure a literary estate?
When deciding how to manage your literary estate after your death, here are a few points to consider to help guide your literary executor.
- Provide specific instructions in your will or trust for your literary executor that explains their authority for governing your literary work and related literary property after you die. If not, then the main executor will have control of the work (who has a fiduciary responsibility that serves the estate, including the payment of expenses, outstanding bills, and taxes).
- If your estate is not complex and/or does not produce much income, then a literary executor may not be necessary. The main executor of your will or trust may be able to manage disposition of your estate and govern your ongoing literary estate activities. A good benchmark – estates less than $100,000 and with copyright protected work that produces little income usually will not benefit from having a literary executor in addition to the main executor. But if your literary estate is complex and produces substantial income from multiple books, numerous publishers, and various licensing contracts governing subsidiary rights, then your estate will benefit from a business savvy literary executor. If you have an accountant, access to royalty reports and financial records will immensely help a literary executor understand the depth of your estate.
- If your literary estate includes published books and various licenses of your intellectual property, then a literary executor must notify publishers and licensees of your death and how royalties should be paid. Make sure your will or trust includes a list of your literary properties (either in the body of the document, or as an attachment). Specify the persons or organizations and contact information to which the rights under your copyrights are granted. Identify the literary property conveyed and whether the work is published or unpublished. Include copies of contracts with your publishers, agents, and licensees. Cover art contracts are also important to add so there is no dispute as to who owns the cover art.
- If you want more than one heir to benefit from your literary estate, then a literary executor may be necessary to manage multiple people with various interests and make decisions on behalf of the heirs collectively (because we all know how family dynamics can sometimes be, especially around the death of a loved one).
- Make a list of your on-line life that an executor may need to manage. This would include websites, passwords, on-line accounts, and pertinent online forums in your literary world. Do not forget to include a list of your domain registrations and expirations.
- If you have unpublished works that you want to remain unpublished, then name these specifically.
- If you have unpublished works that you want published after your death, give your literary executor the power to have the unfinished works completed, and if possible provide instructions where needed. Who do you wish to edit or finish the work? Who do you wish to publish the work? Which subsidiary rights may be exploited, and by whom? Which subsidiary rights cannot be exploited? Which licenses should remain current, and which licenses do you wish terminated (see number 10 below)?
- If you register your copyrights in your published work, transfer will be easier for your heirs and beneficiaries.
- Under the copyright laws, the term of the copyright is for the life of the author, plus a renewal term of 70 years. Copyright renewal rights vest in the author’s heirs (the spouse, children, or the author’s next of kin) regardless of whether the author assigned the renewal term of copyright to a third-party prior to his or her death. If the next of kin are dead, then the literary executor must file the renewal in the name of the estate. Be aware there are differences in this general rule for renewals of older copyright work due to changes in the law (Copyright Renewal; Copyright Renewal System; Copyright Terms)
- The right to terminate a copyright license flows to your spouse or children. The literary executor normally does not have the right to terminate a copyright license.
- If you want to transfer ownership of a copyright to a specific person who will own and manage the rights, then list those people. Remember that some heirs may lack the business skills to manage a literary estate (think contract negotiations or exploiting subsidiary rights).
- Give the literary executor the ability to bring a lawsuit for infringement of your copyrights.
- How long do you want your literary executor to serve? Is it until they die? Is it for a specific number of years? Who is the replacement? Who is the alternate?
- Some writers create a corporation or limited liability company for purposes of governing their literary work (e.g., mine is Prose-In-Progress, Inc.). Use your estate planning devices to specify what happens to these corporations, who controls the corporation, who receive the revenue, and who has responsibility for literary works that are within the corporation.
Unless you have a complicated estate, you can use on-line resources to prepare estate-planning documents (like Nolo or a writers guild) but remember the laws vary from state to state. Otherwise, consult a competent estate attorney to draft estate documents to meet your needs. Some states allow for handwritten wills but I would use a professional or the on-line resources instead to ensure your estate plan disposes of your property and governs your literary estate as you intended. Revisit your estate plans every few years. Adjust the plan as necessary to accommodate personal, career, and property changes.
Legal Disclaimer: This information is provided for educational purposes only. Consult a qualified lawyer in your jurisdiction for all legal opinions for your specific situation.