We're periodically reminded to make a will – and indeed everyone should do so to avoid potentially substantial problems of inheritance and tax for those we leave behind. As the creators of copyright material, Society of Authors (SoA) members should also bear in mind that those copyrights will outlive you by 70 years, and during that time may well have value.
It is important to think carefully about who inherits what parts of your literary estate (the physical items – published and unpublished; ownership of copyright; the right to a share of future income…). The SoA has a detailed guide on your copyright and papers after death flagging up the questions to bear in mind (sign in to access the Guide here).
Here we focus on one particular point which is often misunderstood and can give rise to needless complications: the role of a ‘literary executor’.
The role of an executor is to collect in the deceased person’s assets, meet any outstanding liabilities and then retain or distribute the balance as directed by the will, or hold it on trust if the beneficiaries are in need of protection.
The best arrangement is to have a single set of executors who will deal with the whole of your estate. We would advise that in your will, you either:
- Give your executors the power to deal with all your literary assets – for example, to arrange a sale of your papers to a university, to exploit your copyrights, to publish any unfinished work and to exploit your literary reputation.
- Specify that a named person should advise the executors on points concerning your papers and copyrights until they are distributed. For example, you could put in your will that the executors must ‘consult with [the person you are nominating, who should NOT be described as a “literary executor”] in all matters connected with the publication of my unpublished manuscripts and other papers and the exploitation of my works both published and unpublished’.
If you appoint somebody your ‘literary executor’, it can have unintended consequences. Instead of having a single set of people dealing with your affairs, you will have two sets (your executors and your ‘literary executor’), who have to co-operate. They must make separate applications for probate. If you have just one set of executors, the income and expenditure of the estate and its capital assets will all be in a single pot out of which tax, debts and so on can be paid. If you have two, it is possible that one set of executors will be short of money. You may have to provide a power for one set of executors to lend money to the other, e.g. to pay inheritance tax.
Executors can license or otherwise deal with rights in your work before probate has been granted (though they may be asked to provide a grant of probate to confirm their authority). There are old legal cases which suggest that executors are under a duty to sell copyrights for the best figure they can rather than exploit them, but this is not always convenient or sensible; your will should contain provisions that enables the executors (and after them, if relevant, trustees) to retain your copyrights and not to be obliged to sell them.
An executor’s responsibilities end once the assets have been distributed. However, a ‘literary executorship’ is a separate grant of probate and continues until:
a) your literary estate has been wound up, i.e. copyright has expired, and it no longer holds any rights or money; or
b) the ‘literary executor’ appoints successor trustees (in accordance with the terms of your will or otherwise). Such successors are sometimes wrongly also described as ‘literary executors’ – this is inaccurate because the only person who can appoint an executor is the testator in his/her will; or
c) the ‘literary executor’ dies without appointing anyone else as successor trustee (in which case the role would automatically go to the literary executor’s own personal representatives/executors, which is unsatisfactory).
Some authors are particularly concerned that letters or personal correspondence should be destroyed, or alternatively retained, or sealed up for the long term; or about possible donations to a particular archive, or the appointment of an authorised biographer. These are all directions that you can include in your will without needing to engage ‘literary executors’.
And after probate, what then?
Who will look after your estate in the future, once probate has been granted? Again, there are several possibilities – and our Guidance on Your Copyright and Papers After Death considers them in more detail. You could leave it up to your beneficiaries to make their own decisions about whether or not they want to appoint a trustee or engage an agent (or carry on with your own agent) – and both you and your beneficiaries might find it reassuring to know that your literary estate is entitled to join the SoA and to obtain the same advice and assistance as you are entitled to during your lifetime.
Alternatively, you could appoint a trustee in your will – in which case you would need to make clear to what extent the trustee, rather than your beneficiaries, can act as ‘keeper of the flame’, e.g. make decisions on subjective matters like whether or not to destroy your unpublished papers, whether or not / who to appoint as authorised biographer or make decisions about the suitability of any particular publishing or other proposals relating to your work; and what/how the trustee will be paid for their time.
Your copyrights could be valuable. Do not go unprepared into that dark night. When drafting your will, have a look at our Guide (mentioned above) or show it to your solicitor if you feel that would help.
SoA members are always entitled to unlimited advice and vetting of individual contracts from the SoA Advisory team. Members will need to sign in on the SoA website to access our full range of guides.