The Business Rusch: Ghosts of Writers Future

Earlier this week, I sat down with the pile of estate planning books I’d bought to prepare for this series of blog posts I’ll be doing on estate planning for writers. My plan is this: I’ll blog about this topic about once a month as I research it and as I determine how to improve the wills that Dean and I already have.

I wrote the first blog post on estate planning exactly one month ago—and I gave everyone who read it a homework assignment. By the end of the year, have a will in place. It doesn’t have to be the best will, but it should be a legal will for your state, so that your heirs at least have some idea what to do with your money, possessions, and most importantly for this blog, your copyrights.

If you haven’t read that post, please do. If you haven’t read the comments, go back and read those as well. Lots of great stuff there.

I want to take you all on this journey with me, because I’m learning too. I am not a lawyer (nor do I play one on TV), and when it comes to estate stuff, I’m as clueless as the next person. In fact, when our friend Bill Trojan died last August and Dean became the executor of the estate, I realized that our wills were woefully inadequate and probably not legal in the state of Oregon. We have adequate wills now, legal for our state, but they’re still not what we really want. I realized then that figuring out how to design our post-death careers would require more than just an average will. It would take some work.

So, on Monday, as I scattered the books around me, digging into the “Starting the Process” chapters, I kept getting out of the chair. I do that when I am overwhelmed. In addition to reading all of the material I needed to read, I also organized my important papers drawer (kinda), finished filling out some legal paperwork I’ve been putting off, and downloaded 8 ring- and/or alert-tones, 15 songs, and one newscast.

My phone is organized now, better than my important papers.

Part of what put me off is the tone of the “Plan Your Estate” books. You must do this, you must do that, you have to do this or all hell will break loose.

I don’t do well with you-musts, you-have-tos, and the-world-will-end if-you-don’ts. I generally challenge the speaker with reporter questions: do you have proof the world will end? How secure are you in the knowledge that x will happen if I don’t do y?

There were no speakers here, just books, and I could ignore them if I wanted to. The difference is that I no longer want to. I know that the mess Dean and I will leave if we die together is infinitely greater than the mess that Bill left when he died, and that took most of Dean’s year, a lot of our money, and some of Dean’s health to resolve.

I don’t want to do that to the people handling my estate. Unfortunately, if Dean and I both die tomorrow, I will do that, even though I have many more things done on the estate than I did at this time last year.

First thing I did (after I had downloaded about five ringtones and realized what I was avoiding) was haul out a legal pad and started to make lists.

Not of things to do—God knows, the books have enough of those—but of things I wanted to discuss in this blog, and things I wanted to consider for me and Dean.

I realized, as I was digging into the 1000+ pages of material in front of me that whatever I write about estates will have to be extremely general, because the circumstances that Dean and I are in are vastly different from those of most writers. Not just because we have had long careers, but also because we currently own five businesses—and only two of them are writing businesses.

We also have no children. Our familial heirs, the ones we’re close to, are all older than we are, and so our actual heirs will not be someone in the family at all. We own a lot of property, and we have to make other personal plans that most people will never face.

I decided, at that point, that these estate blogs would focus on two areas:

Planning for Writers

Planning for Small Business Owners

Not all small business owners are writers, but all writers are small business owners. If that sentence shocks you, well, then, you have a lot of catching up to do. You might want to poke around on this blog or get my Freelancer’s Survival Guide. Writing is a business, even though it doesn’t feel that way, and the sooner you realize that, the better for your career, and the better for your estate.

I deliberately titled the first post in this series “Want To Be Read 100 Years From Now? Here’s How,” because that’s what we’re talking about here.

If you don’t care what happens to everything you’ve written after you die, then don’t read any further. Whatever happens will happen, and you won’t be there to notice.

You’ll be in good company. As I poked around in those books, I was shocked to learn that Martin Luther King, Jr. died without a valid Last Will and Testament. Many people die without one (including Pablo Picasso and Sonny Bono), so that wasn’t what shocked me. What shocked me was this:  given all the death threats Dr. King had, the near-misses that occurred, and the fact that he knew his life would be short, Dr. King had ample warning that he needed to provide for his wife and four children in the event of his death. Plus he had copyrights on his books and speeches that would live beyond his death. You’d think that someone around him would have urged him to take care of something so very fundamental.

But no one did. And now, as I look at the task in front of me, I’m getting an inkling as to why.

When you look at estate planning all at once, it seems impossible. It really does. It’s necessary, particularly if you have children. You need to provide for them after your death.

But we’re not going to talk about children or your vast wealth or your squabbling relatives here. We’re not going to worry about what happens to your dog or your grandmother’s $40,000 diamond bracelet that she stipulated should stay in the family.

We’re going to only consider your writing and your business.

Here’s the thing to remember:

Under U.S. Copyright Law, your copyrights remain the property of your estate for 70 years after your death. So if you die at 90 and your kids are in their sixties, and their kids are in their thirties, then a generation of people you either only know as babies or haven’t met yet will someday control your copyrights.

They will decide if your work remains in print, if someone can make a movie out of those works, or if those works can be put into holograms on the walls of spaceships.

In a discussion on Thanksgiving over the fact that 5’7” Tom Cruise will play 6’5” bruiser Jack Reacher, I mentioned Reacher author Lee Child’s response to the news. Child deftly dodged all the unpleasantness by saying, (and I’m paraphrasing), “What author wouldn’t like the number one star in the world to play his character on the big screen?”

Good point. Then Dean, a gleam in his eye, asked me how I’d feel if Tom Cruise played Smokey Dalton. For those of you who don’t know, Smokey Dalton, the hero of my six Kris Nelscott mystery novels, is big (although not as big as Reacher) and black. He’s also in the center of the Civil Rights Movement in the late 1960s.

I stuttered for a moment, thought about it, and then realized, with deep horror, that if I signed the wrong Hollywood deal, such a thing could easily happen. The very idea offended me—not because I don’t like Tom Cruise; I do—but because the role belongs to someone like Will Smith or Denzel Washington.

The point here is that I could hold firm on this no matter how much money someone offered me. My immediate heirs who know my wishes could as well. But what about that future generation, the one who (we can hope) doesn’t know civil rights violations from the Peloponnesian War and who doesn’t see a problem with someone like Tom Cruise playing Smokey Dalton?

When you consider that copyright exists for 70 years after your death, you have to start considering issues like this one.

Or let’s put it this way: seventy years ago was 1942. Did anyone back then even have a clue that telephones would be portable? Or that I could read an entire short story on a phone while I sat in a waiting room today? Or that television shows would be downloaded for free on a personal computer? Or that television shows existed?

Now, are you getting a clue as to what we writers are facing when we think about our work lasting past our deaths?

Okay. I’ve freaked you out. I’ve given you the should-haves, just like the books did. I’ll try to do very little of that.

What I decided in the middle of all that downloading and ringtoning is this: We’re going to start small here. I’m going to work this through in bite-size chunks. On the Business Rusch page, I’ve added a section for estates, so you can see what articles you missed.

I’m also going to take my own research for my own work in bite-sized chunks. Once I made that decision, I calmed way down. Unless I give up everything else in my life for a week, I can’t get all of this done immediately. So I’ll get it done slowly, since I have an adequate will in place.

What should you folks start with for your estate planning (after you get that adequate will in place)?

Copyright. Most of you folks don’t know it, don’t know you license it, probably didn’t even know that it’s a property right, or that it will continue long past your death. So learn that in bite-sized chunks too. Buy The Copyright Handbook from Nolo Press. Put it in the bathroom and read it when you’re trapped in there, alone, each and every day. Eventually, you will  have read the entire thing and that’s a great place to start.

Then, you need to figure out one thing and one thing only:

After you die, what do you want for your writing?

Only you can answer this one, and the answer shouldn’t be vague. You need to make that decision first.

Then, once you’ve made that decision, you need to look at where your writing career stands right now, because what you decide for your future depends entirely on your present.

Let’s take a few general categories as an illustration of what I mean (and in here, I will talk about wills, but that’s a shorthand for whatever document you choose to govern your estate):

1.  Beginning writer.

You don’t have a name yet, or much of a reputation. You might have published a few things, or you might not have. But you are dedicated to your craft. You spend all of your free time on writing and getting that writing published.

If you get hit by that proverbial bus tomorrow, what do you want your heirs to do? Do you want them to try to get your unpublished works into print? Do you want them to attempt to make you posthumously famous?

Or do you want them to let it go and not do anything?

If you want them to let it go and not do anything, I would advise this: Don’t mention that in the will. Because what happens if you have some significant success between the date you complete the will and the date you die? Your will instructs your heirs to abandon your career. Guess what they’re obligated to do? That’s right: nothing.

The thing is, if you die and you leave no instructions, nothing probably is what your heirs will do. So, if you don’t want them to pursue your writing career after your death, then don’t address your written works in your will.

All of that will change after you’ve got a bit of a name because of, well, see the next topic.

2. Traditionally published writer.

If you’re a traditionally published writer who has work in print, then you have an ongoing small business which your heirs must deal with. For example, you will have publishing contracts. Almost all of them state that in the case of your death, your heirs and assigns will be obligated by those contracts.

What if you die after you’ve turned a novel into your traditional publisher but before the novel comes out? Who goes over the copy edits? Who helps with the cover? Who receives the royalty payments (if any)?

If you have had a long career, you’ll have work that someone will want to reprint or might want to option for a movie. Who should that someone contact? Who makes the decision for the estate?

Ten years ago, I was asked to write a novel in a world created by a deceased author. His estate approved my outline, which the estate’s agent conducted an auction on with several interested booksellers. A movie company planned to sign on as well.

Large offers poured in. The offers got taken to the estate. At which point, the heirs (there were at least a dozen of them) did the math, and realized that, as individuals, the deals wouldn’t make them millionaires. So, three of the heirs said no. Even though three wasn’t even close to half, those three could block any deal they didn’t like.

All that work, all those people, all that potential (for backlist and everything else), gone because three heirs did not understand publishing. And because the deceased author didn’t put one person or one organization in charge of the decision-making for the estate.

Your published works will live beyond you. Readers will remember them, editors will love them, publishers might want them. Others might want them as well. But if you don’t deal with your writing in your will, then you have guaranteed one of two things:

1. In the short term, your estate will be very, very, very messy.

2. In the long term, your writing will not be reprinted and will be forgotten.

Traditionally published writers have always had these issues with their estates, but now there’s a new problem. Indie publishing. Some writers have chosen to straddle the line between traditional publishing and indie publishing, putting a toehold in each. In those cases, both point 2 and point 3 below, will apply.

3. Indie publishing.

So…you’ve created e-books and print-on-demand books from your writings. You’ve put those books up on the current sites.

All well and good. The payments from sales will hit your account whether you’re alive or dead, and that income will be dealt with as part of your estate.

But who decides if the books should remain for sale? Who will handle any changes the books need to accommodate new formats or new regulations? Who will deal with any problems that arise through the various e-commerce sites?

And, if your work takes off, who will handle the auxiliary rights sales?

For example, right now your tulip mania mystery novel, set in the Dutch Golden Age, is merely a curiosity. You have a few fans, but nothing that suggests the book will take off.

But, for some reason, in 2035, the Dutch Golden Age becomes the hot property, and everyone wants stories set in 17^th century Netherlands. Suddenly, everything about tulips, herring, and Calvinists is hot, including your book. Who do the movie people, the gaming people, and those folks putting holographic stories on spaceship walls contact for the rights to your now-famous novel? And, again, who makes the decisions for the estate?

You’ll need to know the answer to that before you start writing your estate plan.

4. Successful writers.

It doesn’t matter what flavor of writer you are—indie, traditional, or a hybrid of the two. You’ve become a success. You’re probably not J.K. Rowling, but you have fans worldwide. People love your work. They want more of it. They want to read everything you’ve done, and they want to read it in their language or see it on their movie screen or as a television sitcom.

You’re famous (well, famous as a writer, which means that a few people actually know your name and a smaller few can pronounce it). That fame just might grow—if you’re around to shepherd it with the publication of some more books, with the right kind of game deal, with a few graphic novels.

But that proverbial bus hunts you down and takes you out.

For many writers, that’s the end of everything. No more auxiliary rights, and books fall out of print because of badly designed estates.

But you have an adequate will (like I do) and you have heirs interested in maintaining the income from their now-lost famous relative. Is leaving them the estate, with a few instructions about copyrights, enough?

Not if you want to maintain or grow your brand after your death. You’ll need an estate plan that allows your heirs to continue to use your name, to figure out if a movie about a black detective should have a white actor in the lead role, and to decide what to do with existing properties.

Because there will be no more.

Or will there?

It might be wise for the estate to license novels set in your worlds or with your most famous characters. The Ian Fleming estate is doing that with the James Bond novels, and has done so for forty-four years now. There are copyright reasons for doing things like this, things I’m not going to get into here, except to remind you to learn copyright. Because how can your estate handle your copyrights if you don’t understand them yourself?

Do you have unpublished works? Do you want them published? Or do you want them burned? Sometimes that wish isn’t carried out by the estate. If that happens, are there consequences? Should there be?

For some of you, things like this are pie-in-the-sky dreams. For others, they’re things you’ve never considered and you should.

I’m not saying you need to address those things in your estate plan. I’m not saying you need to spell everything out in your will. But you need to consider all of this before you make any decisions at all.

Your first decision is whether or not you want an estate plan. Realize if you don’t have one, you’re guaranteeing the death of your writing and a real nightmare for whoever is responsible for your things after death.

If you decide to have an estate plan, then you’ll need to hire an attorney. Because copyright issues are too complicated for online services or do-it-yourself wills.

In future posts, we’ll deal with other things you should have in place before that first attorney visit. But this is plenty for now.

One other thing I’ll do on these posts is append a list of books and websites that have estate planning information. Please realize I’m learning this stuff too, so don’t take what I’m saying as gospel or that the links I’m giving below are the best links. I’d like to have other recommendations from the comments, as well.

I’ll expand on these links with each post. And they’ll follow the italicized section on all of the posts.

I’ll write more next month. I haven’t even gone through half of my notes from Monday night’s reading-ringtone session. As I said, there’s a lot to consider, and we’ll do it together.

I must confess: these blogs do benefit me. I probably wouldn’t be digging into this estate stuff in as organized a fashion as I’m doing without the knowledge that I have to communicate it here as well.

However, writing time is writing time, and I’m backed up on fiction projects. So I’m taking time away from them every week as I compose these blogs. I hope you’re getting some benefit from them.

If you are, please leave a tip on the way out.

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“The Business Rusch: “Ghosts of Writers Future,” copyright © 2012 by Kristine Kathryn Rusch.

Book/Website Estate Links

The Copyright Handbook, Stephen Fishman, Nolo Press

Guide To Wills and Estates, The American Bar Association

Plan Your Estate, Denis Clifford, Nolo Press

The Wall Street Journal Complete Estate Planning Guidebook, Rachel Emma Silverman

What Happens When An Author Dies? The Passive Voice blog

The 101 Biggest Estate Planning Mistakes, Herbert E. Nass