Article
The Harper Lee case highlights the need for authors to plan for the disposition of their property rights.
March 8, 2019
Harper Lee, the author of To Kill a Mockingbird, has made headlines during the past few years regarding decision-making over her works late in her life and after her death.
The press coverage raises issues relevant to other writers as they consider the handling of their books and other copyright-protected properties after they pass away.
In 2015, 55 years after the publication of To Kill a Mockingbird, and when Ms. Lee was 89 years old, her second novel, Go Set a Watchman, was published. Although marketed as a sequel to Mockingbird, Watchman is actually a first draft of Mockingbird that Ms. Lee wrote in the 1950s. Watchman’s emergence created shock waves in the literary community, given its starkly different representation of Atticus Finch, the attorney who fights against racial injustice in the Great Depression-era rural American South in Mockingbird. In Watchman, he is portrayed as a segregationist when he is an older man.
The release of Watchman drew public scrutiny of Tonja B. Carter, an attorney who represented Ms. Lee during her lifetime, and who has handled the author’s estate following her death in 2016. Some wondered if Ms. Carter had pressured the elderly Ms. Lee into allowing the novel’s publication.
In any case, Ms. Carter has been an active steward of Ms. Lee’s literary legacy. She helps run a non-profit organization created by Ms. Lee during her lifetime. It presents a theatrical version of Mockingbird in Monroeville, Alabama, the novelist’s hometown, each year. The estate also approved a graphic novel adaptation of Mockingbird by Fred Fordham that was published by HarperCollins in October 2018 and is planning the establishment of a Harper Lee museum and related attractions in Monroeville.
On the protective side, Ms. Carter filed litigation in 2018 against a theater production company to which Ms. Lee had licensed stage rights to Mockingbird in 2015. The lawsuit sought a declaratory judgment from a federal court in Alabama, charging that the version of Mockingbird that Aaron Sorkin had written for the play would violate a requirement in the licensing agreement that the play not derogate or depart in any manner from the spirit of the Ms. Lee’s novel nor alter any of its
characters. In May, the estate and the production company announced that they had settled their dispute, and that the production would proceed on schedule, and it opened on December 13, 2018.
Ms. Lee executed a will in February 2016, eight days before she died. Following Ms. Lee’s death, Ms. Carter persuaded the local probate court where Ms. Lee had lived to seal the will from public access, based on the author’s desire for privacy.
Typically, a deceased person’s will becomes a public document once it has been filed in court with a request that it be probated, i.e., its validity established and the executor named in the will authorized to collect any property the deceased person (the “decedent”) has left behind; to pay any outstanding taxes, expenses, and debts; and to distribute the remaining assets to beneficiaries as directed in the will.
The New York Times sued to overturn the sealing of the will, on the grounds that wills filed in probate courts in Alabama are typically public records. The estate relented, the will was made available, and the Times and other media outlets reported on its contents extensively.
The will made reference to a trust called the Mockingbird Trust, created by Ms. Lee five years earlier. The Times reported that the will was what is known as a “pour-over will,” providing that any property remaining in the estate of the “testator”—the person making the will—be added to the trust after her death. It also reported that the intellectual property rights to Ms. Lee’s novels were granted to the trust.
The Times story stated that, according to the court file, Ms. Lee’s closest living relatives at the time of her death were a niece and three nephews (Ms. Lee never married or had children), and that these four individuals were to receive an undisclosed portion of the estate as beneficiaries of the trust.
Finally, the Times reported that Ms. Lee’s will named Ms. Carter as executor of the estate generally, and that Ms. Carter was given significant authority to manage Ms. Lee’s literary properties. The will also provided for Ms. Carter to receive compensation for her role in handling the estate.
The Harper Lee case highlights the need for authors to plan for the ultimate disposition of their unique property rights in the event of their incapacity or death. This article is intended to provide an outline of the matters they should consider and implement in doing so.
Unlike a will, whose provisions are carried out after the person making the will dies, some trusts can be set up to manage and distribute a person’s property during his or her lifetime. Such trusts are known as “lifetime trusts” or “inter vivos trusts.” A person can also direct through a will that “testamentary trusts” be created and funded with estate assets after the individual’s death.
While probated wills can be viewed by the public, lifetime trusts are private contracts not available for public examination. In New York State, a lifetime trust is created through a written and signed agreement between the person who places her property into the trust (the “grantor”), and at least one trustee. In some cases, the grantor may also be the trustee.
In addition to naming a trustee or co-trustees to manage the property in the trust, the trust agreement names one or more persons or entities (such as a charity) as “beneficiaries” of the trust. The grantor can be the sole beneficiary of the trust. There may also be multiple beneficiaries. The trust agreement lists specific powers of the trustee, such as to invest assets in the trust, sell or rent real property, hire accountants and other experts, and take additional steps to protect the interests of the trust beneficiaries.
A trust agreement will also provide direction regarding the trustee’s distribution of trust assets, such as periodic distributions of income or principal to one or more beneficiaries during specified time frames or for certain purposes. (Many of these trust provisions have significant income and estate tax implications, the details of which are beyond the scope of this article, but which should be discussed with tax professionals.)
Again, by way of example, in New York State a grantor who sets up a lifetime trust can be a co-trustee of the trust as well as the sole beneficiary. Lifetime trust agreements often name the grantor as beneficiary until death, at which time one or more other individuals—such as a spouse and or children—will themselves become the beneficiaries either of outright distribution, or ongoing management and distribution, of the trust income and property. A successor trustee will also be named, especially if the grantor is the only trustee at the time of death.
Neither a will nor a trust is inherently better for directing how property is to be handled and distributed after a person dies. The preferability of methods for end-of-life planning vary based on the individual circumstances, needs, and wishes of the person creating her estate plan.
Oft-cited advantages of trusts include privacy, avoiding probate, sheltering assets from estate or income tax, Medicaid planning purposes, or protection from creditors or estranged spouses. In addition, a trust may provide for a person’s own care if the person eventually becomes incapacitated and unable to effectively manage her or his own property and affairs (when making a will people often grant someone a power of attorney simultaneously, for the same purpose).
On the other hand, a will is often a simpler and less expensive method of implementing a client’s wishes for the disposition of assets, literary or otherwise, after death. Although a probate proceeding can become drawn out and costly if any of the surviving family members contest the validity of the will, most probates are uncontested, with the court validating the will and empowering the executor to begin collecting the estate property within a relatively short period of time. Even when a will is contested, the court can quickly authorize preliminary letters to the nominated executor to enable him or her to collect and sell estate assets and take all other steps necessary to administer the estate, short of making distributions to beneficiaries, while the probate contest is pending.
In Surrogate courts in New York State, the fee to file a probate petition is modest in relation to the size of the estate. The maximum filing fee is $1,250, which applies if the value of the assets passing under the will exceeds $500,000. While a portion of estate funds are applied to hire an attorney to represent the executor, lawyers also need to be paid to assist in the administration of a living trust, often during the grantor’s life, and after the grantor’s death as well. Similarly, just as an executor named in a will is often entitled to be paid commissions out of estate funds, a trustee of a trust is typically paid trustee commissions out of the trust principal. In other words, trust and estate costs do not vary significantly except in certain circumstances which need to be explored with competent legal advice.
Assets can also be passed on to others absent a will or a trust, such as where two people own property jointly with “rights of survivorship,” giving the surviving person complete ownership when the other joint owner dies, or where an owner of a bank or brokerage account, insurance policy, or other asset designates a “paid-on-death” beneficiary to take ownership or proceeds when the first owner passes away. These transfers take place outside of probate, since they happen automatically rather than pursuant to a will.
Whether wills or trusts, or both, are utilized, estate planning is a complex and highly specialized area, with numerous tax and other implications to take into account, all of which should be discussed with an attorney.
Authors need to consider their writings and intellectual property, in addition to their other property, when doing their estate planning. A key step in this process is naming an individual, ideally with some degree of publishing expertise, to administer the author’s copyrighted works after the author’s death.
A properly drawn will usually grants extensive powers to the executor to carry out his or her duties as a fiduciary of the estate. Typical among these would be the power to take whatever steps are necessary to collect the deceased person’s property, manage and preserve a decedent’s business assets during the administration of the estate, and sell any assets as needed, in the executor’s discretion, to pay estate obligations and make distributions to beneficiaries. Specific powers are granted to trustees of lifetime or testamentary trusts as well.
If you are an author and make a will, you can name a co-executor to take on the role of administering your intellectual property rights. You can also name a co-trustee for this purpose for any trust you create that will hold intellectual property rights to your works.
You can empower this co-executor or co-trustee (known as a “literary executor” or “literary trustee”) to issue licenses for the use of your work; collect royalties under your book publishing agreements and other intellectual property licenses; exercise any contractual rights to terminate copyright licenses; make determinations regarding any unpublished manuscripts or other writings you may have left behind, such as whether to enter into agreements for their publication, or to ensure that they are not published; and manage online properties like a website or Facebook page dedicated to you as an author. If you have set up a lifetime trust during your lifetime, the literary executor you name in your will would presumably be the same person acting as the literary trustee of your lifetime trust.
To guide or instruct your literary executor or trustee on matters over which you’ve opted not to give complete discretion, you can provide a list of specific instructions or preferences in the will or trust agreement. You should also include a list of all of your works, and contact information for associated agents, publishers, and licensees.
If you place your copyrights to your works, including the rights you have under your book publishing and other copyright licensing agreements (such as the right to receive royalty payments), into a trust by way of an assignment to the trustee, the trustee will administer this trust property on behalf of the trust beneficiaries. If you have a will, you may assign your remaining copyright and contract rights outright to specific individuals you name as beneficiaries in the will, or you may grant these items to a trust previously created or created in the will itself.
In New York State, a court that approves a will for probate issues “letters testamentary,” which authorize the executor to administer the decedent’s estate in accordance with the will. The executor may order certificates from the court stating that the letters have been issued. These certificates are then submitted to financial institutions and others in possession of a decedent’s assets, so that the assets may be turned over to the estate.
When a publisher is notified that an author whose work it publishes has died, the publisher may ask for one of these certificates of letters testamentary, to satisfy itself of the executor’s authority either to collect royalties under the agreement or to identify the surviving family member or other person to whom the publisher should pay the royalties going forward.
Similarly, the court will issue letters of trusteeship to the trustee of a trust created under a will (a testamentary trust). If the author’s literary estate is to be managed by a testamentary trustee, the trustee will obtain certificates of letters of trusteeship to submit to the publisher in requesting that royalty payments be paid to the trustee, who will in turn deposit them into the trust and administer them for the benefit of the beneficiary or beneficiaries, as directed by the trust provisions set forth in the will. The court does not issue letters of trusteeship for trustees acting under trusts created during the lifetime of the decedent (inter vivos or living trusts). Trustees of inter vivos trusts can act without needing a court certificate to prove their authority to manage trust assets.
Authors can also specify directly in their publishing agreements the individual who, following the author’s death (if the contract is still in force), will take over the agreement and collect future royalty payments.
One other area that deserves an author’s attention is his or her digital assets. During the two-year period prior to his death in 1990, the great musical composer Leonard Bernstein began writing his autobiography, using a word-processing program on his personal computer. Mr. Bernstein reportedly saved the work in a password-protected file, and since his death, no one has ever been able to access it.
Nowadays, digital technologies are widely used for everyday activities such as posting to social media; taking and storing photos; communicating via e-mail and text messaging; sharing documents; paying bills; engaging in banking and stock trading; booking travel and accumulating airline mileage points; and keeping personal notes. Authors may use digital programs for additional professional tasks, including writing manuscripts, maintaining websites, blogging, and otherwise marketing themselves and their books.
When creating your estate plan as an author, you will want to be sure to make specific provisions governing all of these types of “digital assets.” Any will or trust you create or power of attorney you grant should contain a “digital assets clause” giving the executor, the trustee, or the person you designate as your “agent” through a power of attorney (each of these are also known as the “fiduciary”) express power to collect and access your computerized devices and all content and data stored on them, as well as your internet-based accounts and associated data. The will, trust, or power of attorney should also explicitly grant the fiduciary the power to access the content of your e-mails, which may be critical for gaining access to your other online accounts (such as with banks, etc.).
Without these express written authorizations, a fiduciary may not be able to access your digital assets without violating certain federal and state laws governing privacy and computers and electronic data. Providers of internet-based services may also be unwilling to provide the fiduciary with access to a decedent’s account without the issuance of a court order ensuring that the provider can do so without violating the law.
In addition to providing the fiduciary with clear legal authority to access your digital assets, you will want to take steps to ensure the fiduciary’s technical access, such as by providing a separate document containing your user names, passwords, and answers to security questions. Furthermore, you should leave behind specific instructions regarding which digital assets you want preserved, any digital assets you want deleted (such as for privacy reasons), and whether you direct that certain items pass on to specific people (such as someone you specifically want to maintain your literary website).
Authors will sometimes leave their physical papers (like unpublished writings) and certain other personal items to an archive at a library or institution. You might also consider directing that printed copies of some of your electronically-stored communications and documents that you have created be provided to such archives after your death. Realistically, you should anticipate the possibility that the designated recipient will decline to accept them, in which case alternate provisions for the disposition of these items should be made.
With thoughtful planning, authors can provide for their literary property to be administered in accordance with their wishes after they pass away, ensuring that the fruits of their lifetime work as writers are carried forward in the way they intend.
Ed McCoyd practices law in Garden City, New York and is of counsel at the trusts and estates firm McCoyd, Parkas & Ronan LLP. He previously worked in the legal departments at McGraw-Hill Education and the Association of American Publishers, and as Director of Legal Services at the Authors Guild.
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