May 10th, 2013

WHO WILL YOU TRUST? Wills in Author Estate Planning

Susan Spann joins us again for the second in her series about protecting your writing and your author rights in your estate planning. Even though many of us don’t like to think about that particular future, it’s an important part of your writing business that no one talks about.

by Susan Spann

susanspannBig thanks to Writers in the Storm for inviting me back to continue our new series on estate planning for authors!

As we discussed in April, every author needs an estate plan, including a properly drafted will or trust, which addresses the ownership and management of copyrights and other intellectual property the author owns at the time of the author’s death.

All authors have an estate plan. Surprise! You have one, whether you know about it or not. If you haven’t written a will or a trust, then you’re operating with plan #3: intestacy, which essentially means the estate plan the state establishes by law for anyone who dies without a valid will or trust.

A hint for the wise: option #3 is bad.

Authors who have no written estate plan will find their estates (and copyrights) subjected to the laws of the state (or country) where the author resided at the time of death. In most U.S. jurisdictions, the law provides that spouses and biological or legally adopted children inherit the property and rights of a person who dies. However, state laws vary, and in some places property ends up escheating to the state – which means the government could end up with your copyrights.

Unless you leave a written will or trust, you’re gambling with your intellectual property. Don’t do that.

Take charge. Create your own estate plan.

In most states (and countries), the estate planning choices come down to wills and trusts. We’ll look at trusts in next month’s post. Today, let’s talk about wills.

A will (or a “testament”) is a writing which disposes of property belonging to the testator (the person who wrote the will) at the time of his or her death. The legal name for the property that belongs to a person at the time of his or her death is the “estate” – which is also the reason wills and trusts are called “estate plans.” These documents provide a road map for your heirs—and the state—to ensure that after your death, your property is distributed in the manner you desire.

In many places, if your estate equals or exceeds $100,000 in value, your will must be administered through a probate proceeding. (If you have a trust, there is no probate. More about that next month.)

In probate, the will is administered, and the decedent’s property distributed, by a court or by a court-appointed executor (with or without direct court supervision). You don’t have to have an attorney to probate an estate, but in most cases the executor (the person the will appoints, by name, to handle the estate and its distribution) does hire legal counsel. This is because probate courts have special rules and procedures which can be confusing, especially when the executor is also a grieving family member. Probate lawyers’ fees are generally set by statute (often on a sliding scale, measured as a percentage of the estate).

Authors with small estates (less than $100,000 cash value at the time of death) may find a will sufficient for their needs. This is particularly true where the copyrighted works included in the estate produce relatively little active income. You’ll want to consult an experienced attorney familiar with both publishing and estate planning issues to see what level of income will require your estate to go through probate – once your royalties hit that threshold, you may want to consider a trust instead of a simple will.

A will can contain specific language stating how copyrights and creative works should be distributed, and to whom, and how the author would like them managed after death. (We’ll talk about these options in coming months.)

At a minimum, every author needs a will (many states allow handwritten wills, also called “holographic” wills – check the requirements in your state to be certain). Authors should also prepare a list of copyrights, publishers, and contact information relating to every published and copyrighted work in the author’s estate. The author’s heirs will need that information to collect and manage the author’s creative works. Remember—you won’t be there to help them answer the questions after you’re gone.

Even if your state allows handwritten wills, once your works are published you should consider paying for a professionally drafted will (or trust) to ensure that your estate plan manages and transfers your creative works in the manner and to the people you intend.

Authors whose estates exceed the statutory minimum to require probate should also consider establishing a revocable trust, which offers more flexibility than a will and, in many jurisdictions, allows your estate to avoid probate proceedings altogether.

But that’s the topic of next month’s post.

Have questions about authors’ wills? Feel free to ask them in the comments!

Claws of the Cat CoverSusan Spann is a publishing attorney and author from Sacramento, California. Her debut mystery novel, CLAWS OF THE CAT (Thomas Dunne Books, July 2013), is the first in a series featuring ninja detective Hiro Hattori. Susan blogs about writing, publishing law and seahorses at http://www.SusanSpann.com. Find her on Twitter @SusanSpann or on Facebook.

14 comments to WHO WILL YOU TRUST? Wills in Author Estate Planning

  • Susan, thanks for this prod. I told myself last month I had to write my copyrights into my will, and then of course, promptly forgot. I’m DOING it this month!!! Thanks for looking out for writers!

    • Glad to help, Laura! It’s an important issue – but most people do overlook it. In my practice, I regularly find myself writing wills for people who have put it off until they’re elderly, which is OK except that many of them find themselves having to make decisions in a hurry because they haven’t thought through these things early on. Early planning makes it much easier!!

  • Why is it we tend to take care of ourselves, last? Duh. I need to do this. I know better, as I was executrix for my parents estate…and one of my sons is a lawyer. Double-duh. Okay, this is going to the top of my To-Do list. Thanks for showing us how important this is. [[hiding head in shame]]

    • No shame, Jaye! 99% of my author clients haven’t dealt with this either – the good news is, you’re thinking about it now. Plus, with a lawyer son, it should be easy for you to get something together!

  • Thanks Susan! Another jab in the memory to write that list! Another list to prepare is a list of your online accounts/web sites and user name/passwords that you keep updated and in a safe place for your executor or family’s use. I can’t imagine trying to “find” all of my own online sites if I were my surviving husband!

    • Hi Betty! Yes, it’s important to have that second list of accounts, passwords, URLs, etc, and to keep it where someone could find it. I actually have a secure, password-protected version of the list, and my husband and son both know the password to access it. I’ve worked with several families who had to scramble to locate that information after loved ones passed, and now that so much of our lives takes place online, it’s even more critical to make sure all the information is available!

  • I set up my trust 30 years ago when I first started publishing and at the time had three small children. I recently updated that trust to include grandchildren and future grandchildren.

    • Good call, Jo. It’s great to hear that you have a trust and that you’re also taking the time to update it properly. Remembering those periodic updates will make things much easier for your heirs when the time comes. Nice work !

  • I have a living trust but our lawyer had me hand write what I wanted done with my copyrights and sign it. He has a copy and so do I but I was surprised he had me do it by hand.

    • That does seem strange, that you would do it by hand. Holographic wills are fairly common, but I can’t say I’m familiar with holographic trusts. That said, the laws do differ from state to state and you might have some benefit from the writing. If your estate planning attorney advised you to do it that way, he probably had a good reason.

  • Very good advice. I tweeted.

  • Good information to get authors and rights holders thinking about estate planning and legacy of their works. Very important decisions that should be thought about.

  • […] month’s guest post here at Writers in the Storm took a look at wills in author estate plans. Today, we’ll look at the other common estate planning device: the […]