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Literary Estate Planning

Posted by Nancy J. Cohen on November 14, 2011

If you’re a writer, have you given thought to creating a literary estate? What does this mean exactly? Or maybe you’ve only written a few books and you feel you’re a nobody, so why should you care?

What will happen when someone wants to option one of your books for film rights after you’re dead? Or what if a publisher would like to reissue your entire series? Dream on, right? But have you made provisions for these instances? Who will control your copyrights, collect your royalties, and distribute your physical materials after you die? Do you really want your kids or heirs to throw your research notes and printed manuscripts in the trash?

I’d collected information on this topic from Ninc and the Author’s Guild and perhaps other sources and used them (with credit given, if I could remember the particular source) to create the following template. Consider whether to add in provisions for new or upcoming technologies if you don’t feel they’re covered here. And kindly let me know if I am missing anything or if you would word something here differently.

This is such an important topic for published authors but one that’s not often discussed. So take yourself seriously for a change and make arrangements while you can.

Literary Estate of [insert name]

(As per Revocable Trust Agreement executed [date])

A. Notwithstanding any other provision of this Trust, the Trustee shall not distribute any part of Settlor’s literary estate, but instead shall transfer all of the creative property into a “Creative Property Trust”. The special trustees named in this Trust shall hold this trust in perpetuity. The creative property includes, but is not limited to:

  1. Books, manuscripts, novels, scripts, treatments, stories, book videos, blogs, poetry, dramas, journals, characters and plot lines, series ideas, or any other fiction or nonfiction, whether published or unpublished, created in whole or in part by the Settlor (collectively “Writings”),

2. Copyrights,

3. Rights to collect the proceeds from any Writings,

4. Contracts for the publication, exploitation, licensing, or sale of any Writings, and any derivative or secondary rights in or to the Writings or derived from the Writings,

5. Rights to any performances, recordings, readings, interviews, or dramatizations by Settlor,

6. Use of Settlor’s name and likeness,

7. Rights of publicity, including use and maintenance of Settlor’s website(s), blogs, other Internet activities, and technologies not currently in use, for the purpose of author promotion.

B. Notwithstanding any other designation of the trustee or trustees in this Trust, after Settlor’s death, [insert names] shall serve as special trustees of the Creative Property Trust. If any of them fails to qualify or ceases to act as a special trustee, the remaining trustees shall continue to serve in his or her place. The last remaining trustee shall appoint a successor trustee. These special trustees shall serve without remuneration.

C. The special trustees shall, in addition to those powers now or hereafter conferred by law or by

the other terms of this Trust, solely and exclusively have the following powers with respect to the Creative Property:

1. To negotiate contracts and to publish, exploit, license, and sell, in the special trustees’ sole discretion, any Writings;

2. To refrain from publishing, exploiting, licensing, or selling any Writings for as long as the special trustees deem appropriate, at the risk of the trust estate, at the special trustees’ discretion;

3. To exploit, license, and sell, in the special trustees’ sole discretion, any secondary or subrights to the Writings;

4. To secure reversion of rights for published works;

5. To register and renew copyrights (Note that copyrights are currently for the life of the author plus 70 years.);

6. To collect proceeds, i.e. advances and royalties, and any other revenue resulting from Settlor’s literary estate;

7. To pay the appropriate taxes for the trust;

8. To hire an accountant, literary agent, or literary attorney when deemed necessary for the benefit of the trust.

D. All income and principal of the Creative Property Trust shall be distributed immediately upon receipt to [insert beneficiary]. If [beneficiary name] is not then living, then the proceeds shall be distributed in equal portions to [secondary beneficiaries]. If either [insert name] or [insert name] is not then living, then such deceased child’s share shall pass in equal portions to his or her then living descendants, per stirpes.

E. Notwithstanding any other provision of this Trust, the trustee shall not distribute any part of Settlor’s literary estate that consists of physical materials, but instead shall transfer these materials to the special trustees of the Creative Property Trust.

F. Physical Materials shall consist of, but are not limited to, the following:

Manuscripts: originals, revised drafts, copy edits, and page proofs; copies of published books and articles, notebooks, files, computer disks, research materials, professional correspondence, book related photographs, fan mail, reviews, news profiles, interviews, promotional materials, souvenirs, and awards.

G. The special trustees shall donate any Physical Materials belonging to the Creative Property Trust, that Settlor’s heirs do not wish to keep for personal reasons, to the [insert library fiction collection of your choice].

1. Items should be labeled with [Manuscript Collection Number xxx or however your site labels their collections].

2. Contact info:

3. Mail to: [insert address]

Executed at ________________________, on __________________.

SIGNED:

WITNESSED:

Disclaimer: I am not an attorney nor is this the advice of an attorney. Please consult your own legal representative when creating your literary estate.

How many of you published authors out there have already addressed this issue? Would you change or add anything in the above provisions?

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12 Responses to “Literary Estate Planning”

  1. Great blog Nancy. I’ve recently been thinking about these issues.

  2. Nancy I gotta tell you true. You blow me away, your mind is so creative and you are freakin’ amazing. If I had half your
    ability I would be grateful.
    This one is a bit beyond me, but I understand what you are saying.
    Who ever thinks about this when you sign that first or even second contract. But it sure is something to consider!

  3. Joe, thanks for stopping by. Evidentally, you are not the only one contemplating this issue these days. Must be something in the air. Or maybe it’s 2012 that’s approaching!

    Mary, thanks for the compliments. Flattery will get you everywhere. 🙂 Seriously, you’re right that most authors don’t think about these things at the beginning of their career, but they should do so after building up a body of work, however small.

  4. Nancy, thanks for bringing this timely topic to my attention. All writers should take this to heart and follow through. I know I will.
    I always find your blogs informative.

  5. Nancy,
    This is such an important topic. Thanks for reminding us to make provisions for our literary estates when we no longer can.

  6. Traci Hall said

    Nancy, this is incredible. Thank you for sharing it – I was just talking to my agent about this stuff, asking him what would happen should one of us kick the bucket. Even though he is my agent, he is a representative of the firm, so if he were to die, I would still be represented by the firm as a whole, and get picked up by a different agent within the business. If I kick my mortal coil, then he/the agency would still represent my works on behalf of my heirs.

    This piece you’ve posted helps clarify what else I need to do in order to protect my work!

  7. Marilyn, thanks for dropping by. Traci, asking one’s agent what happens if they are disabled or die is an important question. If you’re with a big agency, usually the scenario is the same as you’ve described. But for solely run businesses, it can be a concern. What happens if the agent’s heir inherits the royality percentage but has no interest or training in pursuing subrights? Can you get those rights back? These are sticky issues.

  8. April said

    Thank you so much for posting this, Nancy!

  9. Thanks you for posting this!

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