Estate Planning for Authors: How to Safeguard Your Literary Legacy

Everyone needs to plan for the disposition of their assets after their deaths. For authors, this consideration must also include the management of your literary estate so that your surviving literary works can continue to benefit your heirs for decades to come. Here are some of the things you should bear in mind while you are planning your estate.

This page is intended for use only as a general guide when planning your estate and does not constitute legal advice. The law changes frequently and the information may be outdated or inapplicable in your state. We strongly recommend that you consult a private attorney when planning your estate, since they should be familiar with the applicable state laws governing trust, estate, and tax issues.

Be Specific

The bequest of your literary properties should state: 

1. The literary property being conveyed including, but not limited to, the associated copyrights); 
2. The person or organization to whom it is bequeathed or transferred; 
3. The exact literary rights conveyed; 
4. The scope of the rights conveyed. For example, when conveying hard copies of documents and other manuscripts (such as to a college or university), you want to state clearly that the copyrights are not being transferred as well;
5. The duration of the rights conveyed; 
6. Any relevant contracts relating to the properties; and 
7. Finished and unfinished manuscripts. 

If you don’t specifically refer to your literary works in your will, they will pass to your heirs under the will’s “residuary clause,” which disposes of any property not disposed of through other bequests. If your will doesn’t have a residuary clause, then these rights will pass by intestacy, as if you had died without making a will; the laws of your state will determine how the property is passed on in that situation.

Management Obligations

Remember and make clear to your heirs that your literary works will need to be managed. Potential questions and problems that could arise if you decide to distribute all your copyrights generally to your heirs include:

• Who will take the lead in terms of dealing with publishers or distributors?
• How will they decide whether to accept an offer for publication or republication?
• Who will review royalty statements and track down missing royalties?

This does not mean that you should select your heirs because of their ability to manage the literary estate (they can choose to work with an agent or other type of advisor), but they should be aware of the fact that a literary estate comes with obligations.

Assets

You should specifically state in your will or otherwise inform your heirs where your manuscripts and other documents are stored: In the cloud or on your computer? In what files and folders?

Make sure your executor also has access to:

• Accounts and passwords. Where do you keep the necessary passwords, and will your executor have access to them? Consider using an online password manager with an emergency access feature, which you can use to make sure your executor will have access to your account. You should also prepare express written authorizations for your heirs to access your online accounts as some service providers will require them. You should also remember that your executor will need access not just to your computer and other devices, but to any retailer or other accounts related to your book sales. They should also maintain access to your phone line in case two-factor authentication is needed for any sites or services.
• If you have a business entity through which you sell your work, your executor will also need access to any corporate paperwork (such as an operating agreement, if you have a single-member LLC). Such an entity is also part of your literary estate and must also be disposed of at the time of your death. For a single-member LLC, the operating agreement can specify who will manage the company upon your death, or the company’s assets can just be distributed under the terms of your will.
• Tax documents.
• Safe deposit box, if you have one. If you do, you need to advise your executor where it and the key are located, and you may need to make arrangements with the bank to allow your executor access.
• Raw book production files. Where and how will your heirs find them if they want to edit them or provide the files to a new publisher?
• Physical book inventory and/or marketing materials.
• Website, which needs to be kept operational and up to date. Your heirs also need to know that they need to maintain your domain name and how to do that.
• Social media usernames and passwords.
• Newsletter/reader email list (this is key for self-published authors).

You can write a letter or record a video explaining exactly where important documents and objects are located, guiding your heirs through the process of managing your literary affairs.

Literary Trusts

You may decide to set up a literary trust and transfer all your literary properties into it, appointing one trustee who administers it for the benefit of your heirs. If you provide in your will for the creation of the trust after your lifetime, this is called a testamentary trust.

You can also set up a revocable living trust during your lifetime. An advantage of a revocable living trust is that it can be changed throughout your lifetime—to add new works, for example.

Executors

If you have a will, it should designate one or more executors. Under the copyright law your heirs can still benefit from your work for decades, so it makes sense to bear that in mind in your estate planning.

To avoid conflicts of interest, your executors and/or trustees should not have a financial interest in your estate. Often, a bank and/or someone with business experience is selected for this important role.

Administration

Executors have many responsibilities. One of their preliminary duties is to notify your publishers and licensees that royalties are to be paid to the estate during the period of the estate’s administration. Under the Copyright Act of 1976, an author may not dispose of renewal copyrights in their will that arise after their death, but the executor may renew them if the author’s spouse and children, if any, are deceased.

Many technicalities exist under the Copyright Act regarding the right to terminate transfers and licenses. This right does not pass to executors. It passes upon death to the author’s spouse and children, or if they are deceased, to the author’s grandchildren. 

Unpublished Works

You may direct your executor to publish some or all of your unpublished works in your will. An executor is not liable to your beneficiaries, however, if they fail to find a publisher for your work after exercising due diligence. You may also restrict certain types of publication and use of your work and/or provide for a period of time to elapse before publication can take place.

The executor’s duty to license the use of the work belonging to the estate consists of the obligation to fairly consider all offers and to grant proper parties a license when it would financially benefit your beneficiaries, unless there is an express prohibition in the will. There is no requirement that your estate grant permission to reproduce your work, however. 

Funds

The proper administration of your estate will require funds. If such funds are not available, your executor may be forced to sell property belonging to the estate. To alleviate this problem, you could set aside sufficient earnings during your lifetime for estate administration, or you could do so through a life insurance policy.

You may also consider establishing an inter vivos revocable trust, which is a trust created during your lifetime to which you would transfer all or part of your assets, literary or otherwise, while you are still alive. During your lifetime, you would be the beneficiary, and after your death, your assets would pass to those named as trust beneficiaries. The establishment of an inter vivos trust has one great advantage: the avoidance of probate. The property transferred to the trust may or may not be included in the gross estate, which is the property owned or previously transferred by a decedent that will be subject to the federal and state estate tax. We recommend that you consult a tax specialist or that your attorney get tax advice on this issue. 

Donations

You may consider donating original manuscripts, letters and other personal papers to your local library, university or other charitable institution. Be advised that each institution maintains its own policies on accepting such donations and should be consulted prior to naming them in your will. Some libraries, such as the New York Public Library, only collect manuscripts in discrete subject areas. Obtaining this information in advance will ensure that your work finds a secure home that will preserve it for posterity. You must be sure to identify clearly in your will both the works to be donated and the institutions to receive them. Additionally, you must designate whether the institutions are to receive the copyright along with the physical work, or whether another beneficiary will receive it. Copyright is a separate property right in your work apart from the right to own its physical form. 

More Information

These webinars about estate planning can provide you with additional information and may answer some of your questions:

• Estate Planning Tips for Authors (2023)
• Estate Planning for Authors: Tips for Your Financial and Literary Legacy (2021)

Get Help with Estate Planning

Regular and associate members can submit a request to our legal team here. We can refer you to an estate attorney as needed.

Not a member? You can gain access to our legal services for just $149/year. Learn more about the benefits of membership here.

Heirs, executors, or trustees of the estates of deceased authors can also join the Guild to use our legal services. Learn more about At-Large membership here.