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.
Thanks!
“The Business Rusch: “What To Be Read 100 Years From Now? Here’s How,” copyright © 2012 by Kristine Kathryn Rusch.
Kristine,
Thanks for this post and the link to the Passive Guy’s article as well. I will have to updated my will since my first novel was published last year.
Wills and Estate Planning are an essential part of a person and family’s financial picture and should not be overlooked.
Marion
@Elizabeth
Making a will that is formally OK in all 53 US states and near states isn’t a big deal but the problem would be regarding children, spouse etc since some states insist on fixed inheritances and such (as does Scotland). Thus a check on all states where you might have property is needed.
@ SpringfieldMH
Plenty of good Andre Norton reprints as Ebooks.
Thus Baen have plenty (mostly Omnibuses)http://www.baenebooks.com
and click (or search)Norton
And Premier have recently put a whole set of in copyright works in the Kindle Store like Gryphon in Glory.
Tor too IIRC.
Sigh. This probably explains why I’ve had trouble finding any or any decent/legit ebooks for science fiction classic authors Andre Norton and Clifford D. Simak.
Which suggests the possibility of knowledgeable folks in the industry helping identify, rescue and revive such literary estates, commercially and/or creative commons or public domain, hopefully in a legal ethical fiscally responsible manner in keeping with the author’s wishes..
Worst case, make sure adequate copies of works are archived for safekeeping, until the works age out to public domain.
I am an American writer residing abroad. I have queried 3 lawyers about drawing up a will and no one seems to have a clue because they don’t know which state law to apply. there are about ten million Americans residing abroad. Surely we can’t all die intestate?
Lawyers on the list, any suggestions? I’m guessing if you have a permanent U.S. residence, that’s where you do your will. I also wonder if someone at the U.S. consulate in the country you reside in can help you.
I got my will made here in Germany. The German notary public asked me which state law in the U.S. I wanted the will to comply with and agreed that the state where I vote by absentee ballot (Iowa) would be the logical choice. He then made up a will in compliance with German and Iowa law. There are major differences involved. Iowa law demands that a will be witnessed. German law does not, but also doesn’t recognize a typed will unless prepared by a notary public. If you make your own will, it has to be completely hand-written to be legal.
Thank you. Chilling, this. I’ve cross posted the link to my home board from finding the tweet about it, & will post the link to a second author board.
A couple of ideas I had, trying to apply the advice given here to my own situation: I don’t know anyone whom I would trust to run a literary estate better than any friend I picked randomly. (Not that I have any intellectual properties worth exploiting, but assume for the following I do.)
How does one pick a professional who would handle the business end of running a trust? Once upon a time, a writer could reasonably trust an agent she/he had developed a business relationship with, but those folks appear to be an endangered species.
It would seem to me to be a viable business plan for an ethical lit. agent, seeing how marketing novels & books to publishing houses no longer pays the bills as they have, could make a reasonable income representing the estates of the thousands of published writers whose literary corpus consists of a handful of properties: a few published stories, maybe a book or two.
In themselves, these trusts would barely cover a day’s income for an agent, but in aggregation they would be a steady income stream. And estates which generated no income would have no expenses (much like juke boxes & video games for bars & restaurants).
This would be a win-win idea in a perfect world; in our world, I bet there are unethical agents would charge for this service (above the expected 10-15% commission) & do nothing for the money — not even register that they are the agent of record for the properties. (Wherever or however such a record is kept.)
Then again, such a service probably already exists & Kris will be telling us about one in a future column. If not… here’s the idea folks: all I ask is that you think of me once in a while as you make a living from it. (No, I’m stupid or greedy enough to expect royalties on the idea. I just would like to see it benefit people, & maybe be a client of such a service.)
Keep in mind that your copyrights will also outlive your agent.
If anyone cares to reread or read Dick Francis
_Straight_ has a protaganist whose brother dies, leaving him to execute his will.
and _Hot Money_ contains the advice to register your will with the probate court as soon as you have signed it.
Here’s a question that you may know the answer to, especially since I’m moving to Oregon. I need a new will, and I’m not sure when the move will take place, beyond as soon as we can sell this house. We do have a residence in Oregon. The question is, if I did the will here where I live now, would it stand up in Oregon? Or should I do it where I live? In any case of moving, should the will be redone in the new state?
Diana, I’m not a lawyer, but what I’ve experienced with Oregon estate law, and what I’ve heard from friends (and the two different lawyers we hired) is this: If you have no residence out of state, redo your will with an Oregon attorney, with Oregon laws in mind. It’s really, really, really strange here. That’s just me being cautious. The lawyers on the comments board might advise differently.
That is the best advice.
However, for cheap in-between insurance, you could use LegalZoom or Quicken Willmaker and specify you want Oregon compliance. IIRC, you can tell Willmaker that you have interests in multiple states and it will create a package compliant with all jurisdictions.
Keep in mind that will requirements are cumulative, not exclusive. If state A needs the will to have properties P1 and P2, and state B needs P3 and P4, a will with P1, P2, P3 and P4 will stand up in A and B. There are no requirements which are mandatory in one place and forbidden in another.
Thanks. That’s good to know.
That’s what I’ll work on then. My will is way outdated and so having a new one drawn up was on my list. But I’d read yours and Dean’s experiences and so I’ll have to find someone good in Oregon.
A friend ran into this a few years ago. She found a great out of print book she wanted to adapt into a screenplay, but when she went looking to option the rights the author had died and the publisher had no idea who the rights went to… nor did the author’s family.
Priscilla Presley may be a great example of an executor, but she’s also a great reminder to update your will. She and Elvis had been divorced for 4 years when he died.
He was engaged to, and living with, another woman when he died. She got nothing.
‘attended a session with a lawyer who said I needed a new will because of the medical corporation I own.’
Melissa, corporations are a different thing entirely than your personal accounts. Owning a corporation will certainly add complexity to your probate, particularly if there are no instructions regarding how the corporation is to be handled. There are a lot more legal requirements for the transfer, sale or dissolution of a corporation.
If it was just another account of yours the financial planner would be correct, but it isn’t and they aren’t.
Thanks, Teri. I know corporations are different, but I didn’t know if I had to redo my personal will. It does sound like two wills can be useful, though. I’ll include some links in case anyone else is affected, especially in Ontario:
http://www.carters.ca/pub/article/estate/twowills.htm
http://www.cma.ca/practicemanagement/incorporation
I don’t know if anyone is cheap like me, but once I redo these wills, I’ll probably end up spending $2000 so far.
I’m in the process of shoveling gigabytes of fractals into the Copyright Office database. But reading your blog entry (thank you again!) it’s occurred to me how valuable Project Gutenberg and the Creative Commons effort have gone to keep relatively obscure authors (and artists) from disappearing.
I’ve put some art up on my own web site with a Creative Commons license attribution. This blog entry has reminded me that I have to go and upload it to the Creative Commons sites themselves. I trust that the art I upload there will remain in the digital public’s eye longer than anything that goes through probate.
Carolyn
I am *very* lucky. My nephew, who is also a writer, familiar with contracts, publishing, and now, indie-publishing, has agreed to be the executor of my literary estate.
However, I hadn’t thought about paying him to manage it. I just looked back over my will, and realized that he gets paid a portion of the proceeds — it’s to be split equally among my nieces and nephews. Hopefully that will be enough.
Did it cost more money than I’d expected to get my will drawn up, with durable power of attorney things, the literary estate, etc? Yes.
Was it worth every single penny in terms of ending niggling worry? Yes, yes, 10,000 times yes.
Now I just need to get a password-passing plan into place…
Adding, now that I have permission, the lawyer who did my will and literary estate was fabulous.
Her name is Elizabeth Stephan. She works for Oak Street Law Group.
She specializes in estate planning in WA. She’s done a lot of wills and other legal stuff for writers, she is a writer herself, and if you’ve gone to the Clarion West parties, you may have met her.
Feel free to email me if you need additional contact information for her.
Thanks, Leah.
“Ideally, have a letter spelling out things like location of your will, your insurance policies, your bank accounts, your financial planner’s contact info, your current contracts, your funeral arrangements, etc.”
This is not merely administration; it is an act of love.
I’ve seen death with these preparations well made, and I’ve seen it without. The first, especially when it includes detailed funeral arrangements, is a great comfort. The latter inevitably results in great distress and trauma for the surviving spouse and family members.
To make no final preparations is not merely an act of laziness; it is both cowardly and cruel.
I cannot begin to tell you how this one simple detail that Teri mentioned is important. Have a clear letter, in a clear place, detailing where your will and other assets are. In my friend’s estate that started Kris and I down this road last year, I spent almost four full days sitting in his only chair in his apartment (he was a hoarder) digging through four and five-foot stacks of paper looking for wills because I remembered years earlier he had waved in a general direction and said, “The will is in there.” It took even longer to even begin to figure out all his accounts. I’m sure I missed some.
If you did, they should end up in the state’s Unclaimed Property office. You can check NAUPA’s website to get the contact info for the state in question. By federal law, unclaimed funds have to go to the state of the last known address, within 1-5 years (depending on type of funds) after being considered “inactive.” It’s very much worth checking once a year or so. Each state has different laws about how long the state is required to hold the unclaimed funds.
P.S. I attended a session with a lawyer who said I needed a new will because of the medical corporation I own. She said all my assets would be tied up in probate. My financial advisor said that since my husband was already named as the beneficiary on most of my assets, and vice versa, probate wouldn’t be such a problem, so I didn’t end up getting new wills. We live in Canada. If anyone has any thoughts, I’d appreciate it. Sorry if this is too specific a question.
Generally speaking, the answer to your question is, “Could be.”
Sorry, but while a good lawyer could make some guesses – I’m not even going to try since you’re in another country – you have at least three major factors influencing the disposition of your assets. What those assets are and exactly PRECISELY how they are disposed are such major variables in any potential probate situation that you really need competent legal counsel.
Here’s a tip though: your financial counselor went to business school. Your lawyer went to law school. 😉
True. Thanks, Marc.
Caveat: I am not a lawyer or even close. However, I would suggest asking a lawyer about the possibility of requiring agreement by a specified advisor/appointed person prior to dispensation of an estate (i.e. literary works). This might be a way to make sure your son or conscientious friend still has a say but without having to be the actual beneficiary of moneys that may already be provided to someone lese (i.e., your husband). There is also the difficulty of having said friend in a country other than Canada.
I have had a will for more than 20 years, and review it every January as part of a let’s-get-ready-for-the-new-year ritual. Now that our eldest son has become an attorney in a large firm, I plan to use him as executor and another person in the firm to help with the IP stuff. Every year is more complex, and this is the year that I no longer trust myself to accurately modify all the free forms and make sure I have it all covered. It’s worth the cost to pay someone.
Thanks, Maggie. Always spot on. 🙂 I’m impressed that you review your will every year!
Thank you, Kris. I’ve been looking forward to this. I did my “homework” about seven years ago, when I was pregnant with my son and wanted to name the guardians, which is another great motivation.
I’m curious what other people have done if they don’t have a perfect literary executor.
My husband is a great guy, but he is a) exhausted by his work, his commute, and our kids, and b) spends his spare energy on his own music. I named a conscientious and knowledgeable friend as my literary executor, but again, she is a writer and has her own work to look after first. Honestly, at this point, I’ve got my eye on our son, because he’s motivated by money and appreciates my writing, but obviously, it’ll be well over a decade before he can step up. I hope to be around for longer than that, but this is all about planning for the worst, right? Thanks for any thoughts.
This sounds like a subject that should be a book in itself. . .
We can see waht happens with physcal books, they go out of print, but what happens with Ebooks? Do they stay on Amazon and Barns & Noble after the author’s death, and if so, for how long? And what about POD books? How are they handled by the POD company?
Has inheritence law caught up with the technology yet?
Craig
“Mu.”
Unask the question, for it contains an incorrect and misleading assumption. This is the same argument that got us in so much trouble during the recent unpleasantness with mortgage recording.
Our legal system is perfectly capable of dealing with this kind of property. There’s nothing novel about it. But we have systems in place and if you (generic you) can’t be bothered to learn them and use them, it’s not the system’s fault when things don’t work the way you think they should. The answer you will get from the legal system if you claim “That isn’t how we do things these days” is a hearty laugh and “Well, then, go sort it out yourself.”
Huh?
Craig
Huh what?
You asked the question:
Has inheritence law caught up with the technology yet?
My answer, while perhaps a trifle snarky (yours is an attitude which is very common and very vexing to me, though I know you didn’t mean it in an insulting way) and for which I apologize, was an attempt to show that the question contains an assumption which isn’t true, and therefore answering it “yes” or “no” would be misleading. “Mu” is a Japanese word which literally translates “no” but which is sometimes taken to mean “Your question is wrong, so no, I can’t answer it,” not “The answer is negative.” Discordians co-opted it for that purpose many years ago. 🙂
Our system is perfectly capable of dealing with the transfer of intellectual property rights and/or contract rights upon the death of the author and always has been. That that isn’t true or wasn’t at any point is the incorrect assumption. The fact that those rights are being used to create e-books is completely irrelevant. To be blunt, anybody who complains about death complicating this sort of thing is really complaining about the incompetency of their attorneys, whether they know it or not.
Now, could the laws be a little clearer about who has what rights to copyrights and so forth upon an author’s death absent a will?
No.
This is another trick question. They are crystal clear. The death introduces no new ambiguities related to intellectual property law or the nature of the assets themselves. If you know who gets Uncle Bob’s house, you know who gets his copyrights. If you don’t know who gets his copyrights, it means you don’t know who gets his house. Again, you are really complaining about a totally different problem. You may be complaining about the law of inheritance in the jurisdiction in question – which can, admittedly, be a little Byzantine to the casual observer, but which I assure you we’ve been working on for a long time and is more or less optimized for general applicability. Or you may be complaining about the failure of license agreements to speak to rights on death. Again, that’s on your lawyer, not on the system.
I think I failed to make myself clear….
What I meant was; Author X has 10 e-novels up. He dies. His estate is as clear as Missippi Mud, and the will (if there is one) goes into probate, or ends out in a court battle.
Does the E-novels stay up until the person controling the rights requests they be taken down? What happens to the royalties as the estate is being fought over? Do both the ebook vender and POD publish continue until told otherwise? Are E-rights covered in local inheritence laws.
That’s what I meant about technology being ahead of laws. I don’t know if it is, which was the thrust of my question.
Craig
Why would you think any of that would be any different from any other ongoing business activity?
FWIW, I’m the executor for a friend who lives in a different state. She had her estate attorney double-check the laws of both my state-of-residence and hers, in order to confirm that her will would stand up in either state. Was this necessary? Probably not, but she has a rental property here that will have to be probated when the time comes (may it not be soon). Was it a good idea? She thinks it is, but she’s a belt-and-suspenders type. If you spend a great deal of time in a different state, say have a vacation home or family property or business, it might be worth looking into. (I am not a lawyer, I do not play one on TV, and I did not stay at Holiday Inn Express (TM). )
IANAL either, but I have actual experience. My mother’s will had to be probated in both England and Guernsey because she had investments in both. So the will had to comply with the local rules in both otherwise the local intestate rules would have prevailed.
So check everywhere you own or might in the future own property. For shares in a listed corp this might be DE or NY and where a copyright lives I don’t know. Two witnesses is a good state.
Man, is this blog series of yours on wills & estates important, Kris (as you well know)! I would like to add the following advice for setting up wills & estates from what I’ve witnessed first-hand from the heirs’ perspectives in some ugly situations:
1) Talk to your heirs about what you are planning to do with your will and estate. DON’T just assume they want what you’re offering, or will do the job you want them to. ASK before you list someone as executor of the estate, or guardian of your children. ASK before you make someone a heir to something complex like copyright or mineral & gas rights.
2) It’s important to ask yourself, is this person competent to do the job of executor of the will (and trust)–i.e. has strong business sense? good instinct for when he or she is being bullshitted?
3) Don’t assume that your heirs are going to get along with each other or agree on things. DON’T. A good lawyer will make sure possible disagreements are covered in the will and estate planning. The more money in the estate involved, the greater the likelihood of discord.
4) Complex estate issues like the inheritance of mineral & gas rights need to be handled by a lawyer experienced in those matters. The bigger the estate, the more critical the lawyer’s experience becomes.
I’ll give an example that’s been happening lately in Marcellus Shale area in PA/WV/NY. Heirs inherit mineral & gas rights to a property that is assessed as much, much higher in value due to Marcellus Shale boom. However, estate planning didn’t include setting up of trust fund money to help the mineral rights heirs with inheritance taxes–instead the bonds & stocks & cash of the estate went to different heirs. So rights heirs ended up with huge tax bill for assessed value of rights, and only way to pay tax bill was pony up the money themselves, or to take out loan, or sell the property for pennies on the dollar since it was known to be a “distressed” sale.
Under certain complex circumstances, screwed-up estate planning can make it so that your heirs will LOSE significant amounts money that will never be recovered later, because it turns out:
value of what was inherited over its lifespan < (inheritance taxes + management costs + lawyer fees to fix the mess due to poor planning).
Both my grandfathers were lawyers. My uncle is a lawyer. Many of my cousins are lawyers. I have had a will since I was twelve. 🙂
I’ve changed it over the years, as I added children and property. I would like to urge your readers who already have wills to REVIEW THEM every few years, whether you have anything you want to change or not.
As for literary executors, I have always in mind the horrible fate of Lord Byron’s memoirs. As literary executor of his estate, Byron picked Thomas Moore the poet. Alas, Moore failed in his duty, allowing himself to be talked into destroying Byron’s memoirs for fear lest they cause a scandal. I weep to think of what we might have learned from Byron’s autobiography. I urge writers who are picking a literary executor to pick one who will actually carry out your wishes, and not those of outsiders. Pick an executor with a backbone.
Hi Kris
Glad this series of posts has kicked off. Really looking forward to it. I’m no lawyer or MBA type but a creative with a biz hat being pulled firmly in place, and have been adjusting the fit for a few years. What I’ve thought and asked about has developed my thinking of the biz side, and appreciation of the huge range of what needs to be considered and decided. It is a major need, but of course generating good ideas and telling good stories is paramount otherwise it’s all pointless. So, if I may, I’d like to offer a few thoughts in response to your first blog and the comments from readers:
– we have to get our heads round the truth that earnings period can be extremely long;
– inter-generational thinking needed; so different from fast bestseller or nothing thinking.
– beneficiaries & management may best be separate, at times, though some overlap may be useful depending on particular individuals’ strengths & inclinations;
– expenses planning for biz training of key family, not least to ‘manage’ the managers & executors, and prof services, should be considered alongside other costs of generating as well as managing assets;
– Death + 70 yrs: that’s for personal ownership; could also hold the IP in other legal ‘vehicles’, such as companies or such, which should allow copyright control and therefore licensing possibilities for far, far longer. Also, different corporate, trust, foundation, etc rules in different areas as well as costs, identity exposure for risk of being sued, etc.
– Switching or transferring IP between ownerships, even personal to company or vice versa, could generate a capital gains liability should sales be more than zero; the taxman loves what may come his way. Of course, repeated transfers, shuffling, between existing or new assets may cause repeated costs, or losses to the family coffers;
– Oh, the taxman. There has to be strategic consideration, too, if there might be transfers, gifts, sales or purchases or equity or beneficial or controlling stakes in those vehicles. Strategic perspectives needed for the vehicle as well as individuals;
– more tax: someone has to keep on top of revenues, profits and cashflow to ensure annual (or other) tax liabilities met, and any employee, etc, or there could be trouble.
– Perhaps Idiot’s Guide is needed for each asset group, and ‘annual report’, which keeps everyone up to speed on what has happened and how things are done, and why.
– This seems a lot. Perhaps it is. But with effective, focused systems in place, and run, it’d get easier than it seems. But why do it? Because you are building wealth streams for you and family, and beneficiaries. It might inspire them, too. One thing is for sure – if there is money being generated, it has to go somewhere.
– Writers who can plan, design and plot frameworks and details for stories, series and worlds can do this. It is another world, or environment, to design and be more akin to constructing a wee utopia rather than leaving dystopia and headaches.
– If writers don’t care, why should anyone else to run things for them?
Blending business with creative work, this is really interesting. I look forward to reading more on the excellent blog series and the great contributions and comments from readers.
…and overhaul the Will.
best, Pat
Since James Scott Bell brought up living trusts, please, PLEASE make sure your transfer your copyrights to the trust if you use one!
I’m saying this as a retired Wills & Estate attorney. In the ’80’s, living trusts were all the rage to avoid the probate court system (nothing wrong with that, BTW). But so many of my colleagues forgot to tell their clients to actually transfer their assets to the trust. The trust wasn’t funded, therefore worthless. And the surviving heirs ended up in the probate court anyway.
And if you have an agent and/or an IP lawyer, they need to know that you have a living trust. They don’t necessarily need to know the terms, but they need to know that you have one. There are a LOT of places where this is more important than it might first appear.
Okay, mine is an unusual situation. I have no children, I’m an only child, I have no relatives younger than me. Everything is set up to go to my wife, then my best friend, who is my age.
Beyond that, can you leave your rights to a charity, or is there some organization to help writers who might need financial assistance for medical problems or whatever?
I realize this is an odd question, but you got me thinking.
Oh, yeah, Randy. There are lots of organizations like that which you can leave your estate to. You will need to research them, I’m afraid. I would make sure that they’re well managed and they will be here for longer than you will.
Thanks for asking this question, Randy, since I’m in the same situation. I’m an only child, am not married and have no children. And since I’ll likely outlive my parents, who are my first choice as heirs, my estate will eventually go to charity. Most of the physical stuff is already taken care of (antiques and collectibles to the local museum, books to the university library, money and funds to charity), but the copyrights are a headache, simply because I don’t know who to trust with them.
Randy, also keep in mind that your wife probably has heirs of her own. If you die, and all your copyrights go to her, what happens when she dies? Are there relatives on her side whom you absolutely do not want to have control of your stuff? What about their heirs?
I’s married with no kids, and no expectation of kids. I will most likely need to set up a trust for my copyrights, because under no circumstances do I want my books under the control of my in-laws. (They so could not handle it.) And right now, if I die intestate (or with a will leaving everthing to my husband) and then my husband dies intestate (or with a will leaving everything to his family), that is exactly what will happen.
This is another one of those things that for lawyers is automatic and for other people is… the plot of a bad murder mystery.
Famous example: you may recall the Tylenol poisoning case. What many people don’t know is that three of the seven people who were killed were in the same family. One died from taking the poisoned pills: after the funeral, two other members of the family didn’t feel well and also took some of the pills (this is how the source of the poison was determined.)
Or, to use a more generic example familiar to every law student: A husband and wife are involved in a single-car accident. The paramedics arrive. First case: Both are dead when help arrives. Second case: The husband is dead when help arrives, but the wife is mortally injured. She receives aid but dies on the way to the hospital.
If the pair has no wills, the disposition of their estates is COMPLETELY DIFFERENT in those two cases. (If they have children, in some states it would be completely different and in other states it would not. It would also depend on whether they were mutual children.)
If they do, and the wills were written competently, it will make no difference and their wishes will be carried out in either case.
And even that has caveats, depending on the state. In Wisconsin, in order to be eligible for intestate succession you have to survive the deceased for 120 (I think) days.
Like several others, I have no natural heirs nor does my husband. I have NO IDEA who to leave IP stuff to (and that includes a small photography biz). All our attempts at wills so far have foundered on that rather necessary immediate first step.
I wonder if there is an alternative to designating a charity? I mean, why would they know how to handle it any better than Uncle Fred?
I’d like to find an author in a younger generation, and leave it as a viable business to them, one they can just keep percolating along while they work on their own material. What do you think? (And how would I find one?)
If you’re mentoring a writer, you might want to consider it. But remember, estate management will take time from their writing. Still, there are infinite ways of doing this. You could also designate a scholarship to the school of your choice and have the estate fund that scholarship. Then you’re in essence creating your own charity. Just make sure that the estate’s administrators get a percentage too, so that they don’t work for free. This is all something to discuss in future blogs! I can see it now. 🙂
Thank you so much for covering this essential topic. I’d add one suggestion, especially for newer writers: don’t let your lawyer dismiss your ownership of copyrights as too trivial to bother with. When we updated wills earlier this year, I had to argue a bit with the lawyer to get a specific clause covering copyrights. Yes, I currently only have two books published and the income from them is insignificant, but my plan is for that to be very different five or ten years from now. Wills cover the future as well as the present, so don’t be afraid to think a bit larger than might seem necessary at the moment.
Exactly, Kathleen. I love your quote “Wills cover the future.” I would argue that wills–before you die anyway–are all about the future.
I’ve seen some awful stuff happen with inheritances, and that’s without royalties. The only royalty claim I’ve had so far regarded a smart lady who left her estate to a trust for her grandson. (Of course, her son had tried submitting a claim, saying she’d never made a will…)
Make a will. Here are some short bits of advice about wills I’ve gleaned from three years of claims processing. (Not a lawyer, etc, etc)
1. Use a lawyer who knows your local probate laws.
2. If you insist on not using a lawyer, have your will notarized, as well as witnessed by two people. The notary and the witnesses SHOULD NOT be related to you in any way, nor should they be beneficiaries of the will.
2.5. Type the will. Handwriting is hard to read.
3. Have all copies of the will witnessed and notarized. Make at least three copies.
4. Keep one copy of your will in a safe, easily accessible place. Keep one with your attorney. File one for safekeeping with your local probate court.
5. ALWAYS KNOW WHERE ALL COPIES OF YOUR WILL ARE. If you need to change the will, you should (I prefer MUST) retrieve all copies of your previous will and destroy them. I hate codicils. I can’t count how many times we’ve been presented with what looks like a complete will, only to have a codicil or a subsequent will surface later.
6. MAKE SURE to tell your heirs and executors that you have a will and where the copies are located. Ideally, have a letter spelling out things like location of your will, your insurance policies, your bank accounts, your financial planner’s contact info, your current contracts, your funeral arrangements, etc.
I’m sure some of this will get covered in future posts, but since we all have homeword to do NOW, I wanted to get this out there. 😉
Thank you, Kris, for starting this series!
Great list, Mercy. Thank you! If Bill had just had his will notarized, we would have had fewer problems. So please, folks, follow these steps.
Great material. I’m looking forward to more on estate planning and copyright. Thank you.
Thanks, Steven.
Kris,
Thanks so much for this post. I hadn’t considered these issues. I just made an appointment with the attorney who did my will, trust, power of attorney, etc. And I forwarded her the link to your blog post.
Wonderful. Thanks for letting me know, Janet. Great job.
Good heads up, Kris. I would recommend the living trust as the vehicle for all estate planning. Very easy to do. A paralegal can serve the purpose, a site like LegalZoom, or even a resource from Nolo Press for do-it-yourselfers.
Exactly, James, so long as the instructions are for your state, not just general. And please, folks, follow those instructions to the letter.
This cannot be emphasized enough. I’m sure you will do so in your entries, but it must be pounded upon like a noisy pot in the hands of a two-year-old. THERE IS NO MARGIN FOR ERROR. If your state says you need two witnesses, you need two witnesses. Not one, not none. Two. Three is better. A one-witness will in a two-witness state is a meaningless stack of paper. And so forth.
Not to get too far into war stories, but I once wrote a will for a person who was admitted to a hospital on a Sunday, diagnosed with several fatal illnesses on Monday, executed the will on Tuesday, and, as we say, the will matured on Wednesday*. If ever there were a temptation to cut corners, that would have been it. But no, if ever there were a time not to cut corners, that was it. I don’t care how busy the hospital notary is, get her up here NOW. Nurse, are you a resident of this state? Are you familiar with this patient? Great. Would you mind signing this in front of the notary? No, Ms. Family Friend, you cannot be a witness: you are a beneficiary of the will. Doctor? Same questions? Good. Here’s the notary. Patient, please review these pages and initial them if they are accurate. Sign here. Nurse, you sign here. Doctor, you sign here. Show her your ID. Thank you.
And that will stood up.
*I have changed some details for privacy. The timing, however, is accurate.
Details are extremely important. Thank you, Marc. And never assume that the state you’ve just moved to is exactly like the state you just left. Plus there are different laws about what happens after death (to the body) in different states as well. Unfortunately, just before death and just after time is truly of the essence.
Wonderful point. Thank you.
Good point to remember (and hopefully none of you ever need to) that often hospitals have a notary on staff. (I don’t know if it’s required.)
A couple years ago a friend of mine called up my husband at work. Our friend was experiencing acute liver failure. It was expected that, if he didn’t get a transplant in the next 24 hours or so, he’d be dead. Smart friend, called my unfailingly competent husband to be his advocate. Husband got down there, got all the info on our friend’s accounts and landlord and the keys, got our friend’s mom on the road from another state over, and got the hospital notary to wait until the mom got there so she could be her son’s POA. (Smart husband also really did not want to be POA unless there was no other option.)
Fortunately, by the only event I’ve personally been around for that I would without hesistation call a miracle, our friend’s liver (and kidneys by that time) decided to turn back on, and he’s doing fine. But he went into the coma knowing his stuff was being taken care of.
I’m glad he called my husband, because I would have had no freaking idea what to do.
Sorry. Forgot to add the link:
http://journal.neilgaiman.com/2006/10/important-and-pass-it-on.html
Thanks!
Neil Gaiman had some great advice on just this subject. (Passive Voice had the link in its comments, but I wanted to make sure you saw it).
Especially note the “simple will” pdf he has. It includes a clause dealing with the writer’s papers and copyrights.
It also tells the story of John M. Ford, a science-fiction writer whose family, apparently ashamed of his profession, has refused to bring his out-of-print works back into print.
And John M. Ford was one of our best writers. This is quite common. The heirs to the Arkham House estate tossed out the old books that “no one wanted.” (I don’t have a link; I know this one anecdotally) Local fans and collectors heard, and managed to save some of the books. That’s one of the reason early Arkham House books are so collectible.
How funny! I’d forgotten that I was the one who left the link in the comments on Passive Voice.
Kris, Thank you! I’ve been waiting for this series. 😉 Each week you share an abundance of info and every post teaches me something. It’s only been the last few months I started thinking about a will, but I had no idea how to proceed. My list of titles is still short, but I’m working everyday to change that. I look forward to the next entry. Yes, I will have a valid will by the end of the year. (Wanted 10 titles first.) Bless you for sharing your knowledge with us. ~ Aithne
I hope to have more knowledge as time goes on. Lawyers, others, please add! We’ll all benefit. And I’m glad you’ll have a will soon, Aithne. 🙂
Reading this, I’m now betting that estate management and ensuring the continuation of his work is part of the reason that George Lucas, notorious for refusing to compromise on creative control of his universe (after a few early mistakes, christmas special, cough, cough) went ahead and sold Star Wars to Disney.
Fantastic post!
Yep, Beth. Just one of the many stories from the last few months that has to do with control of an estate and a creative legacy. Great spot. 🙂
A sad and fairly contemporary example of God-as-harsh-editor is Jonathan Larson, who wrote the musical Rent. He died, suddenly, the night before its off-Broadway premiere. A few months later it was on Broadway where it stayed for about ten years and earned hundreds of millions of dollars. (Mercifully, he at least died knowing that his work was on the cusp of success.)
Lawyers, which I’m, are often accused of being real downers, man. In our profession things like “parade of horribles” and “common catastrophe” are terms of art. But listen to the smart blogger lady, folks. I’m as greedy as I have the ambition to manage, but I’d rather take a few hundred dollars from you now to write a will than thousands and thousands of dollars from your estate to steer it through probate. No, really I would. It’s a drag. (Note: I have written wills and am qualified to do so, but have only been involved peripherally in knock-down, drag-out probate litigation. But trust me anyway. Also, I do not practice wills and estates law professionally: I am not soliciting clients.) There are easier ways to make money.
I haven’t looked at LegalZoom, but another alternative is the software which generates wills. If your estate is fairly simple, and you merely wish to transfer your copyrights to another person, this is another possibility. Intuit (the makers of Quicken) publishes a package through Nolo Press which does an adequate job for simple estates and is very easy to use and quite affordable. Do what it says – including witness signatures, notarizing affidavits, etc – and you’ll at least have something your executor/beneficiary can take to the probate court. That right there is tons of heartache, time and money saved.
Also, I’d extend the little indirect plug that Ms. Rusch makes for considering charitable recipients as “heirs of last resort.” When I draft wills, I always ask my clients what their favorite charity is, and then if they’d like to set up the will so that if by some horrible stroke of fate none of their beneficiaries are able to enjoy their legacies, a worthy cause that they support will receive it instead of it going (the legal term is “escheating,” which I’ve always loved) to the state.
Wonderful additions, Marc. Thank you. And yes, charities. They’re grateful, they do good things, and they keep an eye on the income flow, making sure the estate has a good manager. Always better than defaulting to your local government. 🙂
I have a will, but it was executed mere weeks after my first novel released into the indie world of publishing. I asked my lawyer about the intellectual property, and he said that it was covered along with all my real goods. It is part of my estate.
However, I see from your post that I will likely need to set up something more for managing the intellectual properties. (I have 6 titles now, and my number of works continues to increase.) Their ownership is undoubtedly covered. (The will is not a cheap temporary will, but an expensive will intended to do the job right.) But the lawyer is a wills & trusts lawyer, not an IP lawyer. He wouldn’t know about the IP end of things!
:: clicking over to PG’s blog ::
Thanks for the link, Kris. And thanks for tackling this subject. I’ve been eagerly awaiting this series for the past year!
An update is a good idea, J.M., but the will is a start. Kudos on having that done, at least! (One assignment finished early…) 🙂
another thing to think about.
your notes, scribbles, story ideas, etc
Imagine what would have happened if a generic “cleaning service” had been hired to go in and “deal with” Robert Heinlein’s office after he died. Old letters to editors, who needs those, they were about business decades ago…..
(I’ll pause while you get your stomach under control again)
Are you really sure that whoever is going to deal with things is going to have any clue about what’s what?
What about your online stuff. Will people be able to get into your accounts? (Will people even know what accounts you have?), or will stuff get lost because some bill didn’t get paid and a hosting company deletes your account (and everything in it)
Good points. Thank you!
There was a question on the Baen Bar in the last couple of days from a reader looking for a book and wondering why a book that used to be available as an e-book, wasn’t available any longer.
it turns out the author died a couple of years ago, and for whatever reason, the e-book is now no longer available to buy from anywhere.
This happens so often, David. We’re talking about getting the rights to reissue The Best of Pulphouse, but some of the authors have died, and we’re going to need time to track estates–if, in one case, there even is an active estate. 🙁