So, you want to be an artist. You want to be one of those writers everyone has read, even though you’re long dead. You want your work in libraries, on bookstore shelves, and in digital format. You want professors to assign your work, or kids to sneak that “crap” that everyone decries but everyone loves.
There are two very simple ways to do this:
1. Write a lot of good stories. Not beautiful words. Good stories. Remember, fiction gets translated into a variety of languages, and in those languages, your original words get lost. Only stories get translated, stories with great characters, great plots, and unforgettable moments. I wrote a lot about this over the summer. Start with my post titled, “Perfection.”
2. Establish Your Estate Long Before You Die. Your copyrights will outlive you. That’s how they’re designed. If you don’t know what I mean by this, then get yourself a copy of The Copyright Handbook, and start reading it now. You don’t sell fiction; you license copyright. Learn what that means, and learn how it will impact your estate, your heirs, and your legacy.
You’d be surprised how much of the entertainment news you consume is about estates. You’d be surprised how much of the books, movies, games, and television you consume exists because someone handled an estate well or someone handled it poorly.
Or didn’t have an estate at all.
Don’t be like our friend Bill Trojan who, long before he died, would say about his (considerable) estate, “I don’t care what you do with it. I’ll be dead.”
My husband Dean Wesley Smith fought Bill for years to get a will, because Bill had some very collectible books and extremely rare pulp magazines, things that had only one or two copies left in existence. Dean thought it a crime for those copies to die with Bill, and badgered Bill into getting a will.
Bill finally executed one, an annoyingly inadequate one, that caused us a lot of legal problems just to get validated. Dean blogged about this entire saga (including the legal issues) earlier this year. If you want a scare story about estates and what you might leave your heirs with, read this.
Think about this: Bill’s collectibles were property, which he disposed of in his will. He left that property to Dean and a few others.
Your copyrights are property. They must go to someone. It will be up to that someone to manage those copyrights—or not.
Dean could have let Bill’s books rot in some warehouse somewhere, or Dean could have sold the entire shebang for pennies on the dollar. He chose not to, for a variety of reasons, not the least of which was to honor Bill’s life work, which was collecting.
Imagine what happens if you leave your copyrights—your life’s work—to your second cousin Edna who has never read a book in her life. Or if you dump those copyrights on your great-grandchild whom you haven’t met, or who has no idea how to balance his own checkbook, let alone handle the large business you’re about to leave him.
Because here’s the truth, folks. As writers (and this applies to any artist), your estate will be infinitely more complicated than our friend Bill’s. If you have heirs, particularly children and grandchildren, then your estate becomes even more complicated. If you want your life’s work to be well managed, your estate becomes infinitely more complicated.
If you want to be read (or remembered as a writer, artist, musician, etc) one hundred years from now, well, you better have every “i” dotted and “t” crossed, and then you’d better pray a little, because the remembrance doesn’t depend as much on those really good stories as you think it will.
It depends on whoever inherits your estate and how they manage it.
Here’s the place where I have to remind you that I am not a lawyer. I barely know this stuff. In fact, when I wrote my Freelancer’s Survival Guide, the very thing that started this blog in April of 2009, I didn’t deal with estates at all.
Bill’s death made me realize what a gaping hole I had left in the Guide.
I need to do a very long series on estates, but I’m going to do it slowly, as I learn. This post is a shorter version, a very generic starting point, designed to scare you into at least getting a will completed and signed.
Because, at minimum, you need a valid will.
What composes a valid will? Here’s where things get tricky.
In the United States, a valid will gets defined by each state, not by the federal government. Wills are governed by state law, not federal law. I have absolutely no idea what happens in other countries. I know what happens if you die in Wisconsin, Idaho, Nevada, or Oregon, and what some (not all) of the requirements are for wills in those states. I know this because of Bill, because of the lawyers we talked to, the judge friends who chimed in on what happens in their states, and what we went through last year.
The estate laws between those four states vary so greatly that it’s as if those four states were different nations, not part of the same nation.
I’m sure estate law in all fifty of the United States is as varied.
But you must have a valid will if you have copyrights (or any other property). If you have children and you don’t have a valid will, shame on you. You need to plan for those kids’ future because for all you know, you could get hit by a bus tomorrow, and it will take weeks, sometimes months, to settle what happens to your living, breathing children, let alone what happens to your metaphorical children (your books).
Best case: hire a local attorney who specializes in wills, estates, and trusts, and ask for a minimal will. Promise that you’ll be back for full estate planning sometime in the future. But in the short term, hire this person to design a will to cover your ass while you do the research you will need to do in order to plan for the future of your estate and how it will run without you.
Most attorneys won’t charge much for this service. You’ll probably end up spending a hundred dollars, maybe two or three hundred, for this very basic will.
If you don’t want to go to an attorney (and why don’t you? What are you afraid of?), then use a reputable service, like LegalZoom.com. We’ve used LegalZoom for a few things, and I can tell you this: It gives you documents appropriate to your state. It provides accompanying material written in English so that you know what you’ve got. It also provides the services of a legal aid on the phone to answer a few questions. (Too many questions, and you get charged.)
Honestly, though, a will isn’t something you should do yourself or something you should do through a service. If our friend Bill had hired an attorney, then we wouldn’t have spent time, heartache, and money trying to figure out if his will was even valid. He would have had all the documentation in order and we would have had the confidence that we were doing exactly what he wanted.
But let me tell you this:
A badly executed valid will is better than no will at all.
Here’s what happens (generally) in the United States if you have no will.
1. The state determines who the heirs are. This is done by state law. Generally, family inherits. The closer the family—spouse, children, parents—the more likely they will get the bulk of the estate. But not all of the estate. In Oregon, for example, the spouse does not inherit the entire estate unless a will specifies a full inheritance. In Oregon, the spouse only gets a percentage of the estate.
If there are no heirs, generally speaking, the estate goes to the state itself. Usually the state will have spent an inordinate amount of effort trying to find heirs, so this part will take time. Not that it matters to you, because, to paraphrase our friend Bill, you’re dead. What do you care? You didn’t care enough in life to make these preparations. You have no right to complain if your spirit is hovering over this mess after death.
2. The estate goes into probate. Generally speaking, probate is a byzantine process by which the state identifies what the estate actually is. The state has to know how much property the deceased had—including (but not limited to) real estate, money in accounts, valuables, collectibles, and oh, yeah! copyrights. The state must also find and pay off all of the deceased’s debts, if any.
I had an aunt and uncle who were waiting, literally, for a very rich relative to die so they could inherit her estate. She died without a will. The estate went into probate. When my uncle died years later, he still hadn’t inherited the money he felt he deserved because the relative’s estate was still in probate. Even though my uncle was elderly, he didn’t have a will either (probably because he was waiting to find out what he would inherit). His probate was relatively simple: his estate went to his wife. But his death complicated the wealthy relative’s probate dramatically. I never heard how that resolved. But when my aunt died less than a year after her husband she, sensibly, had a will.
Most courts won’t realize that copyrights have value. Particularly if you are the Emily Dickinson of your family, and you haven’t really tried to get published. (For those of you who don’t know, ten of Emily Dickinson’s poems were published in her lifetime. She sent her poems to family & friends, but didn’t try to publish most of her prodigious output. Her sister worked tirelessly to get Dickinson’s poems published after her death. And, yes, there were estate problems. Read about that here. Still, the point is, Dickinson wouldn’t be known today if it weren’t for her family.)
The court will probably ignore your copyrights if you haven’t been published. If you have, then determining value becomes very tricky. Because copyright value depends on everything from who licenses it to royalty payments to current trends.
And here’s the biggest complicating factor: Copyrights remain valuable property for 70 years after the death of the writer. So for 70 years after your death, your copyrights can continue earning a sizeable sum—but only if your heirs know how to manage those copyrights.
Most writers don’t know how to manage their copyrights or even what those copyrights are. How can those writers expect a non-writer to do what the writer doesn’t even know how to do?
So, think of it this way:
If you have indie-published some novels and a few short stories, who is going to maintain those publications after you die? Will that person update to the latest technology? Will that person answer a letter from a game designer who wants to build a game around your world? Will that person even know that game designer should not be allowed to build that game for free, but must pay a licensing fee (or come to some other legal arrangement)?
If you have a long-term traditional publishing career, who does your publisher contact with questions about your about-to-be published book? Who handles the foreign rights for a novel, relatively unsuccessful before your death, that has become hot after you died?
Who handles the unpublished works?
What if you die just before the movie version of your first novel is released? What if that movie becomes a success? Who decides what company publishes your backlist? Is your backlist available to be published?
Successful writers all know that managing a career is a full-time job, one that we do because we love our work. Now, imagine handing that job to someone who has no clue what a publisher is, who had never seen a publishing contract, and who has no idea what an e-pub file is.
After the death of the author, most literary estates go dormant. The person who inherits has no idea how to maintain that estate.
If you don’t have a will, you will guarantee that no one will manage your estate. Whoever eventually inherits—years after your death—will have to be motivated enough to rebuild everything you’ve done, everything that got neglected after you died. If the estate goes into probate and you have no heirs, the state will not maintain your copyrights unless the state believes they have value.
So, if John Grisham dies tomorrow without a will or any estate planning, someone in his home state will know that his copyrights have value. But if you die, and you’ve only published two novels, neither of which earn more than $50 per month, will the state care? Will the novels continue to earn while the estate grinds its way through the long probate process? Who knows.
Honestly, estate problems weren’t as big a deal for new writers five years ago as they are now. Back then, most writers’ work died with them. It was too hard to maintain a budding writer’s career, to try to guarantee that something would live beyond her.
But here, as in everything to do with publishing, times have changed. Now a budding writer can indie-publish ten projects and let those ten projects speak for themselves. A year or two after that writer dies, one of those projects might take off. The readers will want more of the writer’s work. A savvy heir will indie-publish the entire backlist.
But there are rarely any savvy heirs.
Seriously, who wants to do the work of another person in addition to their own? Maintaining a writer’s career can be a time-consuming process.
So far, in my research, I’ve found that the modern estates which do well have some kind of literary manager who gets paid either a percentage of the yearly proceeds from the estate or a straight salary to manage to estate. Of course, all of this happens after the estate gets the courts. This is after the heirs get notified, the will gets adjudicated and gaveled down as final, and procedures get set up to keep the work of the writer (artist) alive.
Even then, things can go awry.
When the playwright Tennessee Williams set up his estate, he put knowledgeable people in place to handle all aspects of it, from the publications to play production. Unfortunately, after he died, one of the executors denied the publication of Williams’ work, and tried to control the productions of his plays. For years, it became known that Williams’ work was impossible to produce, and we almost lost access to one of our most renown playwrights.
The executor died, and shortly thereafter, acclaimed productions of Williams’ most well-known plays went into production. A biography came out, and his work returned to print.
Think this was an unusual case? It isn’t. I personally know of another case of a big-name author whose executors refuse to allow his work to be reprinted. They believe they’re following his wishes, and the heirs (who are not the executors) are suing to have these executors removed.
Such a lawsuit happened with the Dorothy Parker estate nearly forty years ago. There’s currently a lot of litigation involved with Michael Jackson’s estate—and that’s even uglier, since control of the millions comes only through control of the children.
Good executors exist. Priscilla Presley took her former husband’s estate from near bankruptcy to a value of $200 million twenty years later. As of last year, the Presley estate’s annual earnings were $55 million dollars. In 2004, a public filing showed that the estate had 100 active licenses, 600,000 annual (paying) visitors to Graceland, and intellectual properties including music and film that had grown in value because, as one blogger noted, “the Elvis Presley ‘product’ had been kept alive.”
You want someone like Priscilla Presley to manage your estate. Will you get someone like her? If you’re smart and lucky, and set up your estate properly. What’s properly? That will depend on who you are, what your intellectual properties are, what condition your estate is in when you die, and who inherits.
So much depends on who gets paid out of the estate. A friend of mine got the lucky task of managing another friend’s copyrights after he died, but got no financial benefit from it. All of the earnings went to the deceased friend’s children, whom the friend had not seen in years. My friend did his best to maintain the estate, but eventually his own career took precedence. Our deceased friend’s work has not been in print for more than fifteen years.
Dorothy Parker left her estate to Dr. Martin Luther King, Jr. After he died, the Parker estate got folded into the NAACP, who wanted the earnings from that estate. Parker’s executor, Lillian Hellman, and the NAACP, went to court over the handling of Parker’s estate. Hellman eventually got removed as executor, and the NAACP still benefits from Parker’s royalties. You’ll notice that her work is still in print.
So, the long and short of it is this:
If you want your work to outlive you, you need to plan for that. At minimum, you need a valid will with instructions as to who will handle your intellectual properties (your copyrights) as well as your other properties. You need someone to manage those properties, someone who will care enough to do a good job. If that someone is going to manage your literary works, then that someone will need some kind of compensation, whatever that means.
Your heirs have to care about your literary legacy as well, so leave your estate to someone who will make sure your work stays in print.
Last year, as Dean and I went through all of the estate stuff, the Passive Guy, the lawyer who runs the Passive Voice blog, wrote about what a writer needs to consider as she sets up her estate. Read this, and use it as a guide.
I promise I will do in-depth work on this topic throughout the next six months. This is going to be a huge project if I do it right and I don’t want it being the sole topic of the blog for the next 15 installments.
So I will post estate blogs once a month or so, along with other things. In that, we’ll discuss things like taxes and trusts, the things writers should consider in their plan to have their work survive them, and even more fun things as I discover it all.
Please, please, please do not wait for me to blog about the entire topic before you get a will. Wills need to be reviewed every few years as your life circumstances change. So, get a valid will right now, and make sure your heirs know about it. Make sure your attorney keeps a copy.
Plan for that will to be a short-term will, something you will update as you learn what will be best to ensure that your writing will outlive you.
I can guarantee that your work will not outlive you if you fail to have a will. So, get busy. This is important.
You work very hard to make your books and stories the best they can possibly be. You want those books and stories in front of readers. But if you fail to protect your estate for those seventy years after your death (minimum), then you are probably invalidating all of that work and all of that effort.
There. I’ve just given you all your first homework assignment ever on this blog.
Get a valid will. Do it before the end of the year if you can.
Your heirs will thank you.
And so will your readers.
Every week, I blog on various business topics in the publishing industry. More writing careers end because writers don’t understand business than for any other reason, so I’m doing my bit to keep writers working.
This blog has to be self-sustaining financially, since the bulk of my income comes from my fiction. So, if you get anything of value from my work on The Business Rusch, please leave a tip on the way out.
“The Business Rusch: “What To Be Read 100 Years From Now? Here’s How,” copyright © 2012 by Kristine Kathryn Rusch.