No one enjoys thinking about their mortality or what will happen to everything they own when they pass away, but if you value and care about the inheritance of your assets, you’ll want to plan ahead. As an author or creator, you’ve likely produced a portfolio of work over the years, both published and unpublished, and these pieces become a part of your estate upon your death. Along with all of the money and property you own, your literary work will be distributed per the instructions in your will or trust, or, at the discretion of a court if one of these estate plans do not exist. If you have a will or trust and haven’t updated it to include your author assets, now is a great time. For those that don’t have a will or trust, consider your reasons why, and if it’s something you should prioritize to protect your work long-term.
Per the United States Copyright office, “Your work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.” For authors, this includes any written or recorded work, whether published or unpublished. For works published before 1978, copyrights last for 95 years from the date of first publication. For works created after January 1, 1978, copyright lasts for the author's life PLUS another 70 years; therefore, your works are considered a long-term part of your estate in the form of intellectual property.
So, who is going to inherit and manage your intellectual property following your death?
This depends on whether you have a valid will or trust in place. Wills and trusts are both legal instruments that ensure your assets are inherited according to your wishes. The main difference between the two is that a will won’t go into effect until you after you die, and a living trust can protect your assets while you’re still alive. In addition, wills must typically go through probate for validation and proper distribution of assets, while living trusts bypass this process, giving the decedent’s family more privacy and the decedent more control over the distribution of assets. It’s important to note that a trust governs and distributes only the property transferred into the trust.
If you die without a valid will or trust in place, your estate distribution will be governed by the “intestate succession statutes”, and will pass to your heirs according to the laws of the state where you reside at the time of death. Heirs may be a surviving spouse, surviving children, or living relatives like parents and siblings if you are unmarried. It’s important to understand that a state mandated distribution of your assets may not align with your wishes; therefore, having a will or trust properly drafted with your specific instructions will allow your estate to be more easily managed and in the manner you want.
We recommend consulting with an experienced estate planning attorney to determine the best legal path for you, your literary property, and your heirs.
To ensure proper distribution and management of your literary estate following your death, authors should have a will or trust in place that names a "Literary Executor" or “Literary Trustee” to specifically manage the literary property. This can be the same individual that you name as the General Executor or Trustee, but many authors find it beneficial to assign this role to someone with knowledge of the publishing industry. A Literary Executor or Trustee is the person selected for the limited purpose of managing your literary property and acts on behalf of your beneficiaries. He or she is responsible for everything related to your intellectual property including entering into contracts with publishers, collecting royalties, maintaining your copyrights, and determining what happens to your unpublished manuscripts.
While it’s natural to want your spouse or one of your children or siblings to take on the role of Literary Executor or Trustee for your estate, they may not always be the right choice. The person in this role is essentially inheriting a small business and should ideally be someone who understands how the publishing industry works. There is a lot to learn and it takes time to monitor royalties, manage copyrights, file necessary paperwork, and handle exploitation rights. If your family, close writer friends, or business associates don’t want to take on the role of Literary Executor or Trustee for your estate, you may be able to pay an attorney to serve in this role. Some traditionally published authors that have a long-standing relationship with a literary agent will assign this role to their agent if the agent agrees. Attorneys and literary agents will typically charge a fee between 10% and 15% to negotiate any literary deals on behalf of the estate.
If you have only one published book, for example, and your literary property is fairly limited, a family member with some business knowledge may be able to fill this role effectively. Because copyright law is enforced for 70 years following your death, you should also consider including a replacement Literary Executor or Trustee in the event your primary dies or becomes incapacitated.
Providing specific provisions for both the disposition and the administration of your literary estate is essential. These instructions should cover every aspect of your literary property and explain the Literary Executor’s or Trustee’s level of authority for governing your literary work and related property after you die. This can include an inventory of your books, all book production files, publishing contracts, short works, articles or blog posts, unpublished works, your website and social media profiles, your email marketing list, merchandise, marketing materials, and any passwords needed for digital accounts.
The last thing you want are family disagreements over copyright control or other aspects of your literary property, so you’ll want to be very clear with your wishes. If you want your unpublished manuscripts to remain unpublished, for example, you can direct your Literary Executor or Trustee to destroy these works upon your death. You’ll also want to consider if your Literary Executor or Trustee is authorized to use the estate’s financial property to hire help. Taking on an author’s literary estate can be a big, complicated role, and attorneys, literary publicists, or other service providers may be needed to assist.
Because copyrights are long-term and are enforced for years after your passing, it’s important to protect your work long-term. You’ll also want to revisit your estate plans every few years and make adjustments to accommodate any personal, career, or property changes. For a more in-depth discussion on estate planning for authors, you can view the webinar “Estate Planning Tips for Authors” posted on the Authors Guild website. In addition, members of the Authors Guild can receive free legal advice and assistance with finding a qualified attorney in their area.
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