This is an update and expansion of an article I wrote for the Alliance of Independent Authors (ALLi) three years ago.
No one wants to think about death, but the reality is it happens to all of us. Many writers have likely written a will–either by using a template on one of many legal sites or perhaps involved an attorney to make sure that their children, siblings, or perhaps some great friends inherit whatever they have. I drew up my first will when I was in my 20s and newly married. I’d been through a cancer scare and knew that even though I was young, I could die soon. I drew up my second will in my mid 30’s when I was remarried and things had changed. I had more assets to leave to children and siblings. I also had responsibility for managing the affairs of certain family members who are intellectually challenged. I wanted to be sure it was all laid out in my will.
I didn’t start thinking about my writing until my late 40’s because I didn’t publish my first book until then. Now 27 books later with a variety of rights exercised and others not yet sold, it’s even more complicated to decide what should happen with my books after I die.
Yes, your books, videos, music, artwork–all called intellectual property–are part of your estate. However, do your heirs have any idea what to do with them? Do they know what to do if someone approaches them online and says they want to publish them, or translate them, or create a virtual world from them? Do they know how to determine if it is a legitimate deal or spam or a thief? Do they know how much they should ask for to license any of those rights? Can they negotiate that deal?
My expectation is that I’ll be writing my books up until I can’t sit at a computer to type or dictate for automated typing. That means there are likely to be many more books when I die and books that are not finished. For the books that are already published I certainly don’t want the money to go to the publishers or distributors alone (which is what happens if no one takes over your account and receives the royalties. Whatever money I’m making, I want it to go to my family.
There are all kinds of questions to consider. What do I want to happen to the unfinished books? Do I want someone else to finish them? Do I want to allow a publisher to take them over? Do I want them to be destroyed? Do I want them to go to a library or writer’s organization? What about the books that are already published but still have rights to exercise? Some of my books already have audiobooks, but not all of them. I’m just beginning to get into translation for some books. I’d love to know that all my books are translated well and distributed in other languages. With all the new technologies and outlets for video there are many opportunities to negotiate those rights–from animation to TV to movies. I have a friend who created a game associated with his series of books. Another friend sold rights for a virtual reality rendition of a series of her books.
As you can see, with books it is not as easy as selling a house or a car. A house or a car has an assigned value that you can look up and know what the going price is for that property. But a book, or even a group of books doesn’t have a single assigned value. It’s not the cost of one copy (e.g., $14.99). The value is in licensing all the creative rights associated with that book. The ability to understand and exploit those rights is not easy. That is why it is recommended that you name a Literary Executor in your will for the sole purpose of handling your “literary estate.”
Many people think of their literary works continuing in perpetuity and, perhaps, after their death, hitting the zeitgeist and generating substantial revenue that was not seen during their lifetime. We have several examples of that already where authors were not memorable in their own lifetimes but their books or short stories have now become classics or are made into a movie and earned millions of dollars for someone (usually the movie people if it was in the public domain). It’s a nice dream but doesn’t happen as often as people wish. For a chance at that, you want someone to be in charge of your literary works who knows how to manage them, negotiate rights, actively keep your catalog alive. You want someone who knows that an email is spam and not a real offer to do anything.
The general Executor of your will is responsible for settling your estate. It usually is fairly straightforward and can be done by a spouse, sibling, or adult child. That person contacts an attorney to file a petition for probate of the will. That includes things like filing for life insurance, preparing final income tax returns, following real estate inheritance laws, notifying all beneficiaries. It is all straightforward and done by millions of people every year.
A Literary Executor is the person selected for the limited purpose of managing your literary property. The Literary Executor acts on behalf of the beneficiaries under your will (e.g. family members, a designated charity, a research library or archive). The Literary Executor is responsible for entering into contracts with publishers, collecting royalties, maintaining your copyrights, determining what happens to your unpublished manuscripts. That executor also has the right– under the Copyright Act — to terminate certain transfers and licenses granted by you during your lifetime, including publishing and production contracts. This is something very important and difficult. The process of getting back copyrights is complex and contains many traps for the unwary. Engaging an IP attorney is highly advised.
What Does an Heir Need to Know to Manage the Rights to Your Literary Works?
It is natural to assume that one of your children or a sibling will be interested in doing this role. I certainly hoped so. But the reality is this is a lot of work. There is a lot to learn and understand and it takes time to be checking for royalties, managing the copyrights, filing paperwork, and managing the exploitation of those rights. In my own family, no one wants to take those on. Perhaps, if I was earning $100,00 a year with my books, someone would take it on as a career. Attorneys and literary agents who agree to take on a literary estate tend to charge a fee of between 10% and 15% for new contracts they negotiate on behalf of the estate. With regard to administering existing contracts, fee arrangements can vary greatly depending upon the size of the literary estate and the responsibilities of the Literary Executor.
Depending on your books, and what they are making upon your death, it may be difficult to find an agent to take them on. What is enough? From my very brief, non-scientific, discussion with several agents a book making $10,000 a year may be enough for an agent to handle. Most of them would prefer in the $25,000+ range. Even more than what the book makes now, the agent (agency) would need to have contacts for that specific kind of book. If the agency has lots of contacts in the mystery/thriller market, and your catalog of books happens to be children’s books they wouldn’t take it on because they don’t have the contacts. If the agency is primarily a genre agency (e.g., romance, mystery, thrillers, Sf, Fantasy) and your book is literary they wouldn’t take it on. In any case, it is a matter of research and calling and discussion.
One of my sons is an attorney. You would think he is the right person to be my Literary Executor. However, that is not the case. Not only is intellectual property not his area of expertise, he is also very busy with his own career and has no interest in learning this new side of things. Yes, my attorney son may know contract law and be able to figure out if any contract is safe, consider the rights of the intellectual property, and at least not get taken to the cleaners. However, he knows nothing about the publishing industry or the movie industry or the TV industry or the music industry. He doesn’t know what the expectations are for money, length of rights to be licensed, or the typical escalator clauses for ramping up payment under certain conditions. He is a civil attorney for government agencies dealing with legislation and regulations. I remember, in one conversation with him, he said he had exactly ONE class in law school about intellectual property. For anything like that, he would need to refer me to a colleague who specializes in intellectual property.
How to Find Someone Willing to be a Literary Executor When Your Books Aren’t Making $10-$25K+
The first question to ask yourself is what is most important to you? For many authors they simply want the books to remain available to anyone who wants/needs to read them. If you simply want them available, and you don’t care about the money, you might consider instructing the executor to place all of your work under a creative commons, non-commercial license and that it is distributed through a number of platforms that do that. I’ve done this already for some of my former academic works–textbooks, workbooks, essays, etc. I’m not willing to write new editions or make changes based on changes in the field, but they still have many parts that are relevant today and can provide a foundation for another academic to build on.
Another option is to roll your books into another micro-publisher. Must self-published authors are micro-publishers. Some have more formal publishing companies that perhaps bring several authors together under one umbrella (my company Windtree Press does this). The vast majority set up a publishing company that publishes only their own books. This could be another independent author who has a publishing company or a small press that is willing to take on your books for a specified period of time (usually for a percentage of royalties) and make sure the remaining royalties are distributed to the person appointed to take care of that for your heirs. Learn more about this “roll-up” possibility from Karen Myers article for ALLi.
Another option is to designate a non-profit as the holder of your copyright and they can make the work available in whatever way they see fit. Of course, you’d want a nonprofit who knew how to do this and that your book(s) fit with their mission.
If you do have a spouse or family member who is willing to take this on, I highly recommend you read Estate Planning for Authors by M.L. Buchman. It is a layman’s take on how to prepare everything you need to pass on to that family member, including an inventory of your books, a distribution/publishing list, a final letter to your family, access to all your passwords to take over accounts and many other details one is likely to forget when thinking through this process. Mr. Buchman has published over 50 books and has a lot of related IP around many of those books as well, from games to audio and video, and more in the works.
For other authors, the first step may be to set up a Literary Trust, so that your books and copyrights do not have to go through probate and are easily transferred to a Literary Executor or some other person or entity you’ve appointed to handle all this. This article, which is part of an ongoing blog of attorneys who are also writers, talks about appointing a literary executor and/or setting up a literary trust. Estate Planning for Writers. Depending on your business, the number of books you have, and other complications of how you’ve set up your literary life, you may need an attorney to make sure you get it right. For those who understand all the ins and outs of their business, you may be able to use a site like NOLO and modify the templates to suit your needs. A literary trust can be set up well in advance of your death has some benefits for makes it much easier to transfer copyrights wherever you decide.
The Earnings and Payment Problem for a Literary Executor’s Time
I know many very good books that are self-published and don’t even earn $1,000 per year. For most people that is not enough for them to learn the ins and outs of publishing and take on the work. For myself, about 50% of my time is spent running my business. Think of that in terms of a minimum wage job ($15/hour where I live). That means for $1,000, I will work 66 hours (a total of 1-1/2 weeks per year). I can guarantee it takes more than that to manage rights and look for opportunities. I wouldn’t do it for that much unless it was someone I loved and knew personally.
Currently I spend about 50% of my time (20 hours per week) managing my catalog–making sure websites are kept up-to-date, making sure my author presence on distribution sites are kept up to date, monitoring royalty payments from various contracts and distributors, reading up and learning about changes in the marketplace, managing requests for participation in events, looking for opportunities to get my books in front of more people and then doing the work to make that happen, networking with other authors so we can get some economies of scale on marketing, managing social media messaging. At a minimum wage of only $15/hour that means I would expect to make a minimum of $15,600 per year. Those wages would not include having to pay an attorney to vette any contracts, or the time I have to spend to negotiate a contract and enforce a contract, and all the correspondence around it. There have been years where my books made substantially more than that, and times when my books made less than that (like last year when I didn’t write any new books). Managing an author business is already overwhelming for many indie authors. Can you imagine what it would be for someone who is not in the business already?
What I’ve Chosen for Now
For myself, I’ve set up a living literary trust and have a designated Literary Executor to handle that trust upon my death. I am currently the sole executor of the trust. Upon my death, all income generated from those works will go to the literary executor to pay for her work up to a specified earnings amount. Anything above that has certain percentages designated to go to my designated heirs and a nonprofit. I specifically structured it so that the majority of the profit will go to her because she is the one doing all the work and I hope it is sufficient for her to feel that effort is worthwhile.
Because of also running Windtree Press, I’m still working on building a relationship with another micro publisher who would be willing to roll up the press as an imprint. This would include not only my books but all books in the press for authors who wish to remain a part of Windtree Press after my death. This is a very complex undertaking, as every micro publisher runs their business differently and I need to find the right match not only for me but for the other 26+ authors who have books in the press and get it agreed to or have an out for each author member.
The person I’ve named as the Literary Executor for my estate is an author friend who has been a part of my creative life for the past twenty years. She understands what it takes to keep books out there and she understands how to negotiate rights as needed. She knows when to engage an attorney because she knows her limits. In fact, her own catalog is larger than mine. She is about 20 years younger than me, and we have supported each other throughout these past years. I chose her because she understands that there may be years of small amounts of money and times when she can’t do anything to make more. She is willing to do the work even if she only earns $10K. But if something goes well, she can also earn $100K+. She is also responsible for determining what to do next if she is unable or unwilling to continue being the executor. It may be that everything goes into Creative Commons. It may be that all copyrights are assigned to the designated micro publisher mentioned above. If income has substantially increased, she may decide to hand it off to an agent to manage or to a nonprofit.
I’m not saying my way is the best way for anyone but me. In my experience, keeping a literary work in the public eye and working for you is at least as much work as writing it. Deciding who will do this after you die is something that really needs to be carefully considered. The good news is, as long as you are alive, you can change your mind. You can still change your will, assign someone else or make a different decision. If a child or grandchild proves to be interested, willing to learn, you can always change the person who is named as your Literary Executor. The important thing is to be thinking about this now and making plans.
I am now at the age where I review my will every year just in case things have changed. I make sure my inventory of IP is updated and all the information is kept up to date for someone to take over my business. For example, one thing I haven’t completed yet is finding a backup literary executor should the person I’ve selected die before me or around the same time.
No one loves your books as much as you do. If you aren’t popular during your lifetime, finding someone to do the necessary work to make you popular after your death is very difficult if not impossible.
Whatever your decision, you are wise to be considering it now.