So, you’ve built a writing empire, or more likely, you’ve published a couple of books and they sell enough to pay your cable bill each month (or your coffee bill, if on a smaller scale). Now, you die; what happens? Well, that is going to depend on how you’ve planned for it. I talked to a couple of estate planning experts on what self-published writers need to do to ensure their intellectual property assets (that fancy legal term for your books) pass on in a way that you want. Estate planning, like a good novel, has a few twists and turns, so here’s the skinny so you don’t get caught off guard.
Our First Twist: You May Not Die Immediately
Chad Whitfield, an attorney with Hunter, Smith and Davis in Tennessee, says most people don’t just die. More often people are incapacitated first, perhaps by a long illness or a tragic accident. If you are incapacitated, you need a durable power of attorney. That document will allow the person you appoint to access your financial accounts and make health decisions (depending on the nature of the power of attorney document) while you are incapacitated. Unless you have a durable power of attorney, your spouse (or other closest relative) won’t be able to access any account they’re not listed on, without going to court first.
“In most states, if you’re over 18 and become incapacitated and don’t have a power of attorney,
the court has to appoint a conservatorship,” Whitfield said. “That can take months and cost thousands of dollars.” In general, the court will appoint a spouse or family member as conservator, but it requires a hearing to make sure the appointed person will act in your best interests, and you have to pay the court fees that accompany that hearing.
So rather than waste time and money in court, Whitfield recommends getting the durable power of attorney, which lasts until you revoke it. This is good in one sense, because you do it once and move on. However, if your circumstances change — such as a divorce, or the person you name predeceases you, or you just now hate the person’s guts — you need to revoke the document and create a new one. “I encourage my clients to every two or three years, pull out the documents and review them, see if they need to change anything.”
No More Surprises: You’re Dead
So, your illness has ended and now you’re dead. What happens to your IP assets? Same thing as all your other assets. If you died without a will, you die intestate. That means, the state will decide how your assets are distributed.
“There are 50 states and each of the 50 states has its own intestacy rules,” says Julian Block, an attorney and author based in Larchmont, N.Y. “What the intestacy rules do is spell out who gets your property in the event of your death without a will. In a lot of states, it’s 50 percent to a surviving spouse and the remainder divided among the children. If there’s no surviving spouse, then divided among the children. If no children, look to the grandparents.”
Because intestacy rules are not specific to your situation, Block notes that dying without a will, “could result in some, or a lot, of your property going to a person or individuals you never intended to see your property go to, perhaps individuals you loathe.”
If you don’t want your state’s intestacy laws to decide what happens to your IP, then you need, at a minimum, a will. If you want a say in managing how your IP is handled after you die, you probably want a trust or something more elaborate, like an LLC.
Keeping it Simple
The simplest way to deal with your IP assets is to will them to who you would like and provide a “letter of instruction,” says Block. The will is the legal document that determines who your assets are transferred to after your death. The “letter of instruction” is a non-legal document that offers guidance for your heirs on closing your estate, and your wishes.
“The main goal of a letter of instruction is to let your heirs know what you have and what your preferences might be,” Block said. “In context of writers, your heirs need to know, ‘do you have money coming to you?’”
If you’re a hybrid author and have some contracts with publishing houses, your heirs need to know which houses you’re at and what you have due. For all your self-published titles, your heirs need to know where your accounts are. Block recommends creating a list of all the places you’ve published your books using direct accounts, such as Amazon.com, Nookpress (for Barnes & Noble), Apple, Libiro, All Romance ebooks. If you used a distributor, such as Smashwords or Draft2Digital, list which retailers you chose to distribute your book to via that distributor. (It should be accurate; if your family is going to monitor/close out accounts, they’ll need to know they’ve gotten everything).
“The letter of final instructions needs to include where I have my bank accounts, my brokerage accounts,” he notes. Given that most accounts are electronic, it’s unlikely heirs will find your accounts unless you specifically list them. If your book royalties get paid to a separate bank account, you should ensure your heirs know what that bank is.
You can list the assets and accounts as an attached page, as the letter of final instruction might also include things like funeral arrangements (whether you wish to be buried, cremated, or donated to science). Your asset list should include enough information for the person to find the account, so you may want to include account numbers. If you do, keep the list in a secure location to avoid issues with improper access to your accounts while you’re alive. Whitfield says many of his clients purchase a small safe and share the code with select family members. While you want the list in a secure location, documents that a person needs to close your estate, such as an asset list, should not be kept a safe deposit box at a bank. Both Whitfield and Block noted it may take weeks to get into a bank safe deposit box after a person dies.
When planning for your IP assets after your death, also consider what you want done with your unfinished works. “You’ve got this magnum opus you’ve been working on for years,” Block said. “If it’s unfinished at the time of your death and you do want it completed, you could say, ‘I have some candidates that can finish the job.’ However, another school of thought is to say, if it’s not complete at my death, I don’t want it touched. Forget about it.” Whatever you want done, it should be made clear in writing.
While a will controls what happens to many assets, some assets have built-in controls. For example, bank accounts and retirement accounts ask for a “pay on death” beneficiary. “People need to make sure the beneficiaries read how they want them to read,” Whitfield noted. This often comes up in divorce situations, where an ex-spouse is the beneficiary of an account. If your book royalties go to a separate bank account, be sure the beneficiary is correct.
While a will is a great way for writers to determine what happens to their assets after their death, it does have some drawbacks. One is that the will disposes of the assets once and then it has no more control. If you leave your books rights to your spouse, who is also the other biological parent of your children, that’s great. But, then if your spouse remarries, and dies, leaving your book rights to a new spouse, your children could end up with nothing, while a stranger enjoys the profits from your books. Writers who want more control over what happens to their IP assets after death may want to consider a trust. Unfortunately, we’re running long as is, so on Friday we’ll talk about the advantages of a trust or an LLC for writers, as both allow the entity (trust or LLC) to own book rights, passing on the income to a spouse or child.
Very helpful information, RJ – thank you!
Glad you found it helpful.
Thank you, that’s good information. ! I’d love to see an article at some point on the advantages of LLC versus the DBA, too (not just in death but in life).
Sandra, that’s a great idea. I haven’t done much with LLCs and DBAs, because most self publishers aren’t earning enough to make it worth while. If you get an LLC, there’s the set up fee (several hundred dollars) and there are often annual fees (of a couple hundred dollars), so you have to be making well in excess of that to make it cost effective.
However for those who are earning more, it’s worth look ing into.
Excellent post, RJ. Great information, and a good reminder to at least start getting our houses in order. Not something most of us like to think about, but beneficial to all to do so.
Yeah, death is not a fun subject, but it’s still important to be prepared.
This is great info, RJ, and you’ve also reminded me that I need to review my will. Thanks!
Glad you found the info helpful. And review is important. I think we do the will, and think, “Phew, all done.” But we still have to review the docs we’ve got every once in a while.
Thanks, RJ. A timely reminder for this household. I’ll have to investigate the Canadian equivalent (here, for example, it’s ‘enduring power of attorney.’).
Yes, every country has its own legal rules, so find out the Canadian equivalent, as the people I spoke to were US based. Though, I imagine the issues will be similar, even if the legal terms they use are different.
How did you know I was redoing my will? That’s spooky.
This stuff is really important! I’ve dealt with it several of times for friends and family. For some odd reason people seem to trust me. Having the proper paper work makes things SO much easier for those who have to deal with the details. YOU DO NOT WANT THE COURTS TO MANAGE YOUR AFFAIRS.
So have a will. It’s essential. Then as RJ said you need Powers of Attorney. Here in Canada, you need two. First you need a POA for Personal Care (medical), which enables someone to authorize or discontinue medical treatment, or sign a DNR (do not resuscitate) order. It’s not easy or comfortable, but have a frank discussion with the person you authorize, about your wishes. (My wife tells me she’s signing my DNR if I have anything more serious than a hang nail).
Secondly, you need a POA for Property (financial matters). This may or may not be the same person you designate for medical matters. The person you trust with your life may be a compete airhead when it comes to money. This person or persons will look after your bank accounts, taxes, investment portfolio, real estate and of course any copyrights you hold. You can, if you wish, designate different people to handle different bits, but there tends to be overlap, and it gets a little complicated.
It’s important to note that none of this comes into effect unless you are incapacitated. Still, you need to make sure that whoever you designate is trustworthy. You are literally putting your life in their hands.
Best of all, you don’t need a lawyer. Most states and provinces have free POA kits put out by the local Bar association or the relevant Attorneys General. Here’s the link to the one for Ontario http://www.attorneygeneral.jus.gov.on.ca/english/family/pgt/incapacity/poa.asp
DON’T JUST THINK ABOUT IT, DO IT!
Thanks, John!
That was a wealth of information, and very helpful for people in Canada.
Thanks for the link. I have just downloaded it. When I looked into this a few years ago all I could find was that you had to pay for a kit at a stationary store or from some site online. I just never got around to it.
My big problem is to know who to choose for my financial power of attorney. And I have no one in particular to leave what little I have to. I have never been married or had children, had no siblings, and at nearly 70 years of age, most of my friends could be gone before me. I did find someone to agree to be my medical POA who I trust implicitly, but she doesn’t want to deal with the financial part as she is extremely busy and has a great deal of responsibility of her own. And I wouldn’t want to put that on her. I have no money to leave anyone except what will be left in my bank account from my monthly pension at the time of death. I know no one who would do anything with my unfinished manuscripts and as yet I don’t have any published (I’m working on formatting one now). So other than making a will to leave a few designated possessions to people I would like to have them, there is very little to do. And I often think that once I’m dead, I won’t care where anything is anyway! 🙂 But I do believe that for those who have an estate should make sure that they leave instructions as to how to distribute it.
I just went through this and decided on a simple will. One person gets all the goodies lol, and my copyrights are turned over to them. I do have to do a POA, makes things easier. I once heard whoever holds the flashdrive holds the rights, that was said after the author of “The Girl with the Dragon Tattoo” died.
I’m glad you’ve gotten yourself in order in the way you’re happy with.
I will say that Stieg Larrson, the Girl with the Dragon Tattoo author, is the perfect example of what not to do. Larrson died intestate, and his partner of 30 years ended up with nothing. All his money, copyrights and book royalties went to his father and brother. Based on his partner’s statements and the fact that they were together so long, most people would think that he wanted his estate to go to his longtime partner. Instead, it went to someone else, which is really sad.
A couple of articles on Larrson’s will
https://legalwills.wordpress.com/2010/12/10/learn-from-stieg-larsson/
http://abcnews.go.com/Health/stieg-larsson-girlfriend-eva-gabrielsson-rages-memoir/story?id=12950542
I left the copyright to my written work and photos to a writer in the family, who’s also the executor of my estate. I wonder if that’s adequate.
Helen,
I think the important thing is that you think about what you want done and talk to someone who can help you accomplish that. Wills and estates are about your wishes and how much control you wish to have over your things after you die. If you’re happy leaving it to your friend and what your friend does with it is fine with you, then you’re in good shape. If you want something more elaborate, it’s probably a good idea to talk to an attorney about your wishes.
The thing that it’s important to remember is not to go in with preconceived ideas about what can or can’t be done. Tell your attorney your vision, and usually they’ll be able to tell you the legal ways you can make that happen, or get as close to that happening as possible. The attorney will also inform you of any impediments or unexpected things you might not have thought about.
RJ I’m gobsmacked. What a fantastic article. Old or young, sh-stuff does happen and it’s great to think about it in advance. I’m in Australia so specific issues I’ll have to check out for myself, but you’ve definitely kick-started some serious thinking here. 🙂
Unfortunately, a lot of organizations refuse to recognize a durable power of attorney. It’s great when it works, but it’s not what it ought to be.
Thank you for the very informative article. I have recently done a LLC which is the first step. I’m very lucky to live in a state where it is very reasonable to do this. One of my motivational goals with my writing career is to leave a financial legacy. Your article has helped me put it in perspective about the things I should be considering along the way. I may not really “need to” at this point in my career but I believe as I build it, it will come. I’m a person who likes to be prepared. I will heed your words and plan accordingly. Once again, thank you for a very informative and thought provoking article.