Today Writers in the Storm welcomes back guest blogger Susan Spann, as she continues her PubLaw series about your literary estate. If you've missed her previous instructive posts in this series, click on the title: How to Choose a Literary Executor, and Do You Need a Literary Executor?
by Susan Spann
So far, our look at authors’ estate planning needs has focused on the “how” – how to create an author’s estate plan, how to decide if you need a special trustee (or executor) to manage your literary works, and (if so) how to pick the best person to fill that role.
Today, we diverge from the “how-to” path to talk a little about the duties a literary executor actually performs. We’ve discussed this in general terms before, but people unfamiliar with probate and trust administration often don’t know exactly what’s involved in the process. In fact, many of my clients express surprise at just how much is involved with administering an estate or trust – I have one trustee client who’s been managing an estate for almost a decade.
In light of that, it seemed like a good idea to give authors a view into the other side of the estate planning world—a look at what the literary trustee or executor actually does.
Over the next two months, we’ll take a look at those duties. Starting now:
THE AUTHOR’S ESTATE
After an author’s passing, the author’s creative works automatically become part of the author’s estate, which is a fancy lawyer word that means “the assets a deceased person owned at the time of death.” The estate includes all real property, personal property, intellectual property and other assets. The estate doesn’t include any property or assets held in joint tenancy because those become the property of the surviving joint owner(s) at the time of one owner’s death.
No special actions are required to place a person’s assets into the estate at the time of death – by law, they pass automatically into the estate.
However, special actions are required to collect the assets on the estate’s behalf, because the people and institutions holding onto the assets might not know about the death or that the assets are part of an estate.
WILLS AND PROBATE COURT APPROVAL
When the author has only a will, and not a trust, the estate usually has to go through probate, which is a specialized legal proceeding in which a court supervises collection and distribution of the estate and all of the assets. The person the court appoints to handle this job on the estate’s behalf is called the executor (or sometimes the personal representative).
The executor of a will has no power to act until the court issues an order granting that authority, so if you opt for a will instead of a trust, your executors (which includes your literary executor) will need to go to court to get authority before they can take the other steps we discuss below.
(One exception: if your estate’s value is low enough, some states allow the executor to act without going to court, but that’s fairly rare.)
THE ADVANTAGE OF TRUSTS: NO PROBATE
When the author has a trust, and the author’s assets are properly placed in the trust (either directly or by means of a “pour-over will”), probate is not required. The trustee – or, if appropriate, the literary trustee – can proceed directly to managing the Estate.
TRUSTEE AND EXECUTOR DUTIES
Once the probate court grants permission, in the case of an executor, or once any statutory post-death “waiting periods” end, in the case of a trustee (check with a lawyer to see if such a period exists in your state), the literary executor and/or trustee can begin the process of administering the author’s literary estate.
To simplify matters, we’ll look only at functions of a literary executor – the general executor will have additional duties (again, consult an attorney to find out more).
Here’s a list of the duties the literary executor or trustee will need to perform, in roughly the proper order:
1. Identification and “collection” of literary assets.
This means tracking down all of the author’s creative works (published and unpublished) and identifying them as part of the estate. Unpublished works are usually fairly easy to locate and collect: they’re on the author’s computer, in filing cabinets, or among the author’s personal effects. “Collection” of published works involves sending a notice (and usually a copy of the author’s death certificate and documentation establishing the trustee’s authority to act on the estate’s behalf) to publishers and/or literary agents.
Estate Planning Tip: create a list of your literary works and other intellectual property, with the location, publisher, and any passwords or other information necessary to access the relevant work.
2. Management during early estate administration.
In most cases, the author’s assets can’t be distributed right away. A probate court will need to approve the author’s will, and even a trust requires asset collection, an accounting, and a distribution plan before the trustee can start handing out the copyrights.
In addition to reviewing the author’s estate plan to see which heirs receive which specific assets, the literary executor or trustee will need to manage the works until distribution is authorized.
For published works, this means reviewing all contracts, taking any required actions triggered by the author’s death, and collecting royalties (into a special trust or escrow account) if appropriate. For unpublished works, this usually means holding the works in a secure location until the time of distribution – unless the author’s estate plan specifies otherwise.
Sometimes, contracts have termination clauses or other events that trigger on the author’s death. In those situations, the literary executor or trustee may have to interface with heirs and negotiate renewals or extensions of rights. Administration can be a complex task – and a literary attorney is often a helpful person to have on your side to assist you.
What follows “early administration” can be a little more complex, so we’ll put the rest of the duties off ‘til October. We’ll pick up the topic again next month, when we’ll look at long-term estate administration, distribution to beneficiaries and heirs, and resolution of estate-based conflicts.
Hopefully, today’s post gives you some idea of what a literary executor or trustee has to do on your behalf—and lets you know what to expect in case anyone ever asks you to serve in that capacity.
Have questions? Please feel free to ask in the comment section – I’d love to hear from you!
Susan 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 her website. Find her on Twitter @SusanSpann or on Facebook.