Q. It’s an unpleasant subject, but what should I know about estate planning?
A. As a writer, you have an asset most people don’t: intellectual property (copyright and/or trademarks). First, however, you must understand the difference between the PHYSICAL ownership of your manuscripts and papers, and their COPYRIGHT ownership. As you should know from my previous columns, if someone sends you a letter, you own the physical letter or printout; however, its content still is owned by the author. The same holds true for your own works. You may choose to leave your physical manuscripts to one person or entity, the copyrights to another.
Unless you have a properly drafted will or have created a valid trust, however, you leave the ownership and care of your literary works and papers largely to the state laws of “intestacy.” In most states, one half or one-third of non-jointly owned property (titled in your name alone) passes to your spouse, the other half to your children. (If you are unmarried, most states laws specify that your property passes either to your parents or siblings, or a combination.) This means that your works may not end up where you wish.
You may have heard the term “literary executor,” which is actually NOT a separate statutory or legal “office.” (An “executor” is a person responsible for settling a deceased person’s estate.) A “literary” executor is simply a co-executor whose responsibility is limited to your literary works. Very often, there is no need to name such a separate individual – your general executor (usually a spouse or other relative) is also the person you would wish to be in charge of your literary works pending their distribution to the beneficiary. But if you believe that managing your literary works requires experience in publishing contracts, you should consider naming a literary executor.
Either your general executor (or your literary executor, if you have designated one), will be responsible for entering into contracts with publishers, collecting royalties, maintaining your copyrights, and (where appropriate) arranging for the deposit of your letters, unpublished manuscripts, and other literary materials with a suitable person.
Other issues to consider. If you don’t want some of your works published after your death (your memoirs, perhaps) you must so direct in your will or trust. Will your executor or literary executor have the power to commission the completion of unfinished works? Will he/she have the right to terminate copyright licenses? Will he/she receive a separate fee or commission? Sue for infringement? How long will he/she serve – until the distribution of the estate or for a longer time? These are all issues that you, as a writer, should address in advance.
That is why it is so important that you consult with an experienced estate planning lawyer — and no, the will creation software or form book you can buy at your local computer store is NOT a good substitute. Estate planning, whether for writers or non-writers, is a highly technical subject, encompassing wills, trusts, estate and inheritance taxes, and should only be handled by a competent professional.