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Special Guest Gin Jones on Estate Planning for Writers

New Year’s Resolution: Consult a lawyer

Death happens. You’re going to die someday, but your copyrights will live on, probably for seventy years after your death. There are laws for distribution of assets when a person dies without a will, but these laws are inadequate for dealing with things like copyrights, which will need to be actively managed for decades, and which are not easily divided among an expanding pool of heirs. To protect your copyrights better, you need a will.

Your will can appoint a literary representative (and there is no other reliable method to have one appointed). Literary representatives are responsible for managing copyrights after the author’s death. He or she makes all the necessary business decisions, and then pays the income to the heirs. Without a literary representative, you can end up with heirs who are unable to work together, so the books go out of print, the author is forgotten, and no one gets any money.

Estate planning can also protect your digital after-life. This is an emerging field of law, dealing with a person’s social media presence. Accounts have already been frozen due to the owner’s death (there are reports of both email providers and Facebook doing this). Most of the cases so far have been situations where the heirs sued for access due to some personal interest in accessing social media accounts, but with time, there are bound to be cases where a small business owner dies, and the heirs are unable to retain control over the business website, email or social media content to continue the business.

You can imagine what a disaster it would be for an author’s heirs to be unable to interact with readers at the author’s official Facebook page, or to access a mailing list used to announce new releases by the author. If you’re self-published, there can be even more drastic problems if a retailer freezes a publishing account due to your death. It’s a relatively simple legal procedure to get the retailer to turn over any accrued income to the heirs, but far more complicated to get the retailer to keep the dead author’s books listed for sale. No one knows yet whether the retailers will reactivate the original listing, perhaps just changing the publisher name, or if they will insist that the heirs re-publish the book from scratch, with a new publisher account, new publication date, and newly uploaded cover and text. If the books are re-published, it’s likely that reviews and rankings will not be attached to the new version.

Even though there are more questions than answers about the digital after-life, a qualified estate planning professional should be able to offer some solutions that can protect your digital after-life. Make an appointment now for the new year!

Caveat: This post is intended to offer some general information, and is not intended as individual legal advice. Probate laws vary greatly from state to state and country to country. The one piece of advice I can offer is that you should consult a qualified professional in your jurisdiction, and alert the professional to your concerns about copyright management, literary representatives and protecting your digital afterlife, so that he or she can address the specifics of your individual circumstances.

Gin Jones is a licensed attorney with more than ten years’ experience in the general practice of law. You can read more about estate planning in her book, Estate Planning For Authors, and at thewritegin.blogspot.com, or you can hear her speak about estate planning at the RWA New England Chapter’s conference, May 2-3, 2014.

32 responses to “Special Guest Gin Jones on Estate Planning for Writers”

  1. Amanda, Thank you for bringing this subject to the Ruby’s and to Gin for being our guest.

    This subject jumped up on my must-to-do list this year. I think most of us go through our days not thinking about our own death or estate, until a tragedy strikes and brings the subject close to home.

    I thought I might set up my will where my royalties would be distributed annually and equality to my grandchildren. That brings up a lot of questions.

    Since the digital world in relatively new and estate planners are now, what questions should we be asking them to ensure we are getting someone who is qualified?

    Also, would you suggest that several executors be named in order to save trouble down the road incase tragedy strikes again?

    I hadn’t thought about keeping my social networking going. In order to do so, someone would have to handle it. Can someone be designated to do so and can they draw a salary for doing so? How would that be set up? I’m sure 1099 would have to be produced and filed each year.

    Okay, I’ve asked enough here. I’ll be checking out your blog and book. Thank you again, Gin, so much for being here and answering questions.

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  2. June Love says:

    Amanda, thank you and Gin for this post. This is such an important topic and one that doesn’t receive enough exposure.

    The timing of this post is ironic as my god-daughter-in-law, who is in tax law school, spent last night with us. She read the blog before leaving this morning and commented that the digital aspect of estate planning is a hot topic in her classes.

    Because I am not published at this time, there is nothing in my will that addresses royalties or copyrights. However, I now know that is something I’ll have to add when I do publish–whether self or traditional.

    Thank you, again, for this post.

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  3. Sonya says:

    Thanks for the information, Gin!

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  4. Kim Law says:

    Oh wow, so many things to think about! Thanks for the post, and thank you, Gin, for being here!

    Guess I need to do something about this…

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  5. Gin says:

    I’m on my way out the door, and Autumn raised some excellent questions that would take more than a couple minutes to answer. I’ll be back in a couple hours and try to answer them in general terms.

    First, though, in response to the plan to have a will that provides for everything to go to grandchildren — it’s important to think even more broadly than that when you have an asset that can potentially produce income for seventy years after death. (Not all books will continue to sell, but you can’t know in advance whether yours will.) If you live to be 80, your grandkids could be around 30-40 when you die (figuring 20-year generations, just as an example). The copyrights would last until they were 100 to 110, which more likely means that there would be yet another generation who have ownership in the copyrights (either the grandkids’ children or whoever was designated in their wills), which can be a nightmare in terms of getting all the owners of partial interests to agree unanimously on a course of action for using the copyrights. Sadly, it’s also possible that future generations won’t live as long as we’d like, so the ownership could be divided into smaller parts much sooner than 70 years after your death.

    A comprehensive plan would probably include a trust of some sort in order to keep all the copyrights under the control of one person (or a team, if you prefer), a trustee who is also the literary representative. There are serious legal issues if a copyright has multiple owners who can’t agree on how to manage it, which could result in not being able to benefit from the copyrights at all. A trust would also specify not just the original trustee, but a methodology for appointing subsequent trustees, even if the trust does, in fact, have income for seventy years. The trustee would manage the copyrights, take a reasonable fee for doing so, and then distribute the proceeds to the appropriate heirs. A trust also gives you the option to limit the beneficiaries to your descendants, if you wish, rather than being sold off by the descendants or distributed in a divorce or bequeathed to a non-family member in a will.

    Please note that probate laws and documents vary considerably from jurisdiction to jurisdiction, so you need to discuss the issues with a qualified professional in your jurisdiction. This is not intended as individual legal advice, just as general information.

    I’ll be back later to talk about the questions you can ask your estate planner to make sure he or she understands the unique requirements of a writer’s estate plan.

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    • Amanda Brice says:

      Wow, such great info, Gin!

      As an IP person, I’m always saying “life plus 70, life plus 70” (although in my case, it’s a flat 95 years since my copyrights are in my pen name), but I don’t know why I never did the math to figure out what that could potentially mean in terms of appointing literary executors. Things I published at 35 (when my daughter was 3) will be protected until she is in her late 90s, which means that she would very likely not be the executor either. And that’s just the things I published around this time…I sincerely hope to be publishing for another 30-40 years, so we could be talking great-great-grandkids holding the rights by the time those copyrights expire.

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    • Wow is an under statement. You’ve given a lot to consider before making a decision.

      After I’m gone it won’t matter to me, but I don’t want to cause my children or grandchildren headaches either. I’d hoped to help them not cause friction.

      Thank you!! I’ll need to read more of your answers later tonight. I hope you’ll pop in tomorrow.

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  6. Tamara Hogan says:

    Thanks so much for this information, Gin! Do you have any thoughts about factors to consider when choosing a literary executor? Can provisions be made in one’s will to compensate the executor for doing this job?

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  7. Cate Rowan says:

    Such an important post. Thank you, Gin, and thanks to Amanda for inviting you!

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  8. Diana Layne says:

    This is fabulous. Three years I had to write a will as I needed surgery and you never know. Man, was that tough, what was I thinking having six kids? But three years ago I wasn’t published and as I’ve been having some health struggles again, I’m thinking I need to do this, how timely. Especially as I just read this article on Kidd Kraddick. Not sure how many know who he is, he was a big Dallas DJ, but had syndicated in 74 markets, who sadly and unexpectedly dropped dead this past summer, only 53. He’d been having some health issues for years and had started working on a plan to transfer his empire should something happen, but he died before he could complete it-or before he could marry his fiancee. So now apparently there is his fiance, his 23 yo daughter and ex-wife all somewhat embroiled, it appears from this article. http://www.dmagazine.com/publications/d-magazine/2014/january/kidd-kraddicks-big-secret?single=1. Thanks, Gin, for visiting the Rubies to address this!

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  9. Thanks Gin and Amanda! Just put this higher on my list-to-do!

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  10. Elizabeth says:

    Hi Gin, does forming an LLC help with estate planning? or does it just raise a different set of issues?

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  11. Gin says:

    Let’s start with a couple relatively easy questions:
    “Do you have any thoughts about factors to consider when choosing a literary executor? Can provisions be made in one’s will to compensate the executor for doing this job?”

    For choosing a literary executor (or trustee), the biggest factor is really just whether you trust them to do the right thing. Second, and pretty high in priority, is whether they know ANYTHING about publishing. Depending on the value of the copyright, and whether you have a literary agent or literary attorney you’ve worked with in the past, you could appoint a family member (or authorize your heirs to vote, majority rule, on ONE family member to act as the the literary executor, but also strongly encourage them to retain the literary agent/attorney, or even, with the agent/atttorney’s permission, name the agent/attorney as a co-literary executor.

    It’s common to provide for “reasonable compensation” to the literary executor or trustee. If the executor/trustee is a professional (like an agent or a financial advisor), the fee would be whatever’s standard in the industry. It’s a little more complicated with a family member, but an experienced estate planning attorney would know how to deal with that.

    As with all these comments, please make sure to check with a professional in your jurisdiction, since I’m not giving anyone individual advice, just general information.

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  12. Gin says:

    Another question: “does forming an LLC help with estate planning? or does it just raise a different set of issues?”

    Until recently, I was fairly skeptical of the benefit of an LLC or corp (I’m old-school and prefer a sub-s corp to an LLC, at least in my jurisdiction, where a corp is actually easier and cheaper to set up and maintain), and still am skeptical of the benefit for an author who’s contracted to a publisher. BUT, for a self-publisher, I’m beginning to think it’s really a good idea. Not for the usual reasons of saving taxes (which isn’t likely to work) or even liability (which generally isn’t an issue for writers without any employees), but because of the digital rights issues. (More on that in the next question’s answer.) For a non-self-publisher, a trust might be a simpler and less expensive estate planning tool than an LLC or corp. For a self-publisher who needs an LLC/corp anyway, the estate planning could be rolled into that, or at least made to work with it. It would still be important to be sure that you have a will, which would say, in essence, something like “anything I own that’s not already in the LLC/corp, I give to the LLC/corp.” That way, if there are any loose ends, perhaps some copyright that you owned before creating the LLC/corp, it would end up where it belonged, and not have to be managed separately.

    So, yes, an LLC/corp can be a useful tool in estate planning, but should not be viewed as a complete answer to the estate plan. You need supporting documents as well. You wouldn’t believe the number of times I’ve seen clients (of other attorneys, not my clients originally) who went to the expense of setting up trusts and then never got around to putting their assets into them, or changed the will that originally said “everything to my trust” to something else, leaving the trust empty.

    Disclaimer again: make sure to check with a professional in your jurisdiction, since I’m not giving individual advice, just general information.

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  13. Gin says:

    Okay, now for the even more complicated questions (which I’m editing slightly here for space):

    “Since the digital world in relatively new and estate planners are now, what questions should we be asking them to ensure we are getting someone who is qualified?

    I hadn’t thought about keeping my social networking going. In order to do so, someone would have to handle it. Can someone be designated to do so and can they draw a salary for doing so? How would that be set up? I’m sure 1099 would have to be produced and filed each year.”

    Actually, in a sense these are easy questions to answer, because the basic answer is “I don’t know.” No one really knows yet. As June mentioned, it’s a hot topic in the legal world. There are about a dozen law review articles on it, all published i n the last year or so, and they all basically say, “here are some ways digital afterlife MIGHT be addressed, but it’ll be a few years before we know which path will actually be followed.” There’s some legislation in a few states, either passed or under consideration, and a number of different approaches, with no real consensus.

    So, what do we do now? It sort of depends on how your social media is set up now. If it’s individual accounts, owned by you individually, rather than by an LLC/Corp (and this is why I’m more and more leaning toward thinking self-published writers in particular should have everything in a business name, rather than their individual names), in most jurisdictions, the future of your accounts is entirely subject to the Terms of Service (as they may be amended) of the provider of the media form (e.g., facebook, Twitter, G+). Providers have frozen accounts when advised that the owner was dead, and it didn’t matter if the heirs had the password, etc., they still couldn’t unfreeze the facebook page or gain access to email accounts, etc. If an account is in a business name, then there’s continuity if the author dies, so the key would be to make sure the heirs have the password information for a smooth transition, and less likelihood that the account would be frozen.

    The simple part of that question –whether someone could be hired to manage the digital afterlife — is that that’s something a literary executor could do, as part of his/her fee for managing the copyrights.

    And then there’s the question of how to choose an estate planner. There are two kinds of planners: financial planners and estate planners. The former are generally CPAs or MBAs, and the latter are generally lawyers. Sometimes you’ll find a person with both credentials. I’d recommend that you contact a lawyer to prepare your estate plan, since the issues aren’t so much financial as they are legal.

    I have a whole chapter in my book on estate planning on how to choose an estate planning attorney, but, in addition to making sure you feel comfortable with t he professional, someone who will answer questions without making you feel foolish, the key here is probably to make sure the attorney has experience, not just in drafting estate documents, but also in shepherding them through probate. Most attorneys will write a will if you insist, but you really want someone who, when you say, “I own copyrights that may last for 70 years after my death, and that will need unanimous consent of all the copyright holders in order to get anything done,” will have a look of total comprehension on his/her face. Even experiened estate planning attorneys have probably never represented an author or even a copyright owner where the copyright needed active management, but if you mention the issue, he/she should realize immediately just how that complicates the estate.

    Again, not individual legal advice, just general information, and the recommendation that you take what you’ve learned here and discuss it with a qualified professional in your jurisdiction.

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  14. Amanda Brice says:

    Wow, Gin, thank you SO much for taking the time to answer questions. This has just been above-and-beyond.

    I know a lot of people have bookmarked this to take a look at it when they’re less stressed from the holidays. So much good info here to take in!

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  15. Vivi Andrews says:

    This is incredible, Gin. Thank you so much. I’m avidly reading every word.

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  16. WOW!!!! This is fantastic information! Thank you so much for being here today, Gin! ~D~

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  17. Marla Monroe says:

    Very timely information. I just did a lot of research on this issue as my health has been iffy lately. I don’t have children or a spouse so figuring out what to do about mine was a challenge. Thanks so much for helping me determine my choices and my process for asking the right questions!
    Marla

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    • gin says:

      If you haven’t already resolved your estate plan, you might consider a charitable bequest. If you give your copyrights to an entity that has an indefinite existence, like, just as an example, the American Cancer Society or a university or college, which is likely to continue to exist for more than 70 years after your lifetime, you don’t have to worry about squabbles among a group of beneficiaries that would prevent the copyrights from being used, and they generally have access to professional advice that would enable them to manage the copyrights to maximize their value. You could still name a literary executor if you wanted to place restrictions on how your copyrights could be used (e.g., unfinished manuscripts could be finished by someone else or prohibit doing so), or not bother with a literary executor if you wanted to give the beneficiary total discretion.

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  18. Great post, Amanda and Gin. Thanks for all of the information.

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  19. Cathy P says:

    Thanks Gin – this is hugely helpful.

    We met with our attorney last month to review our wills and as part of the update, I asked about the copyright issue. We were met with a blank look and an honest, “I don’t know.”

    So we’re trying to find someone who is familiar with the issue. As you noted, new and evolving area – and not so easy to find knowledgeable people!

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    • Gin says:

      FWIW, an attorney who will admit “I don’t know” is probably a keeper, as long as it’s coupled with, “but I can find out,” or a willlingness to work with another attorney who has the right expertise. It’s the ones who won’t admit the limits to their expertise that can cause real problems!

      Good luck.

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  20. Laurie Evans says:

    Great info, thanks.

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  21. I did a trust this past summer because my mother had been nagging me for over a year to do so, saying the burden of the work of sorting out my estate would fall on her and my brother (no husband or children) as well as too much money would be lost to the government.

    I had given some thought to what I wanted in a trust–ie, a representative from the family selected to be the trustee for the books. For example, I foresee appointing my youngest niece (an avid reader, who intends to be a writer) as the trustee, but past her lifetime, she could either select the best possible candidate to succeed her, or the family could vote on one. My niece would manage the books and, after taking out a fee for her services, would evenly distribute the proceeds from the books at the end of each year to my other heirs.

    However, to get my mother off my back, I agreed to see her attorney to do the estate plan. I figured I would do a basic trust, and redo it down the road, when my nieces are a little older. The attorney said as long as the royalties were paid into an account in the trust, that’s all I needed to do. I try to explain what I wanted, but since I was on a deadline, and he didn’t get it, I went with the basic trust. Mother is satisfied. Definitely a frustrating experience. I’m tempted to email this blog to the attorney!

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  22. Evan Guthrie says:

    Writers should definitely consider their estate planning options due to the possibility of their work outliving them and the potential earning power it can have for heirs.

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