Challenge,  Topic of the Night

Estate Topic…

Not Really Part of Branding…

But I will take a pass at estates in branding and copyright and trademark, but just not tonight.

And I got back working on a novel tonight, so a couple of workshops will start a little later tomorrow than normal. Not really sorry. (grin)

Tonight’s short post comes from a question I got…

Basically what do you need to do to be a literary executor for another writer?

First off, say no. Just no. You are not suited to do it and don’t have the time and make up. thousand other reasons. Just say no.

Now, you are stuck doing it. (You can always decline even if appointed.) But you decide like I did for my friend Bill’s estate that you don’t have a lick of sense and will do it.

Now first off, there is a huge difference being an executor on a will (get legal help) or just a literary executor of a person’s writing for the next 70 years.

But legal help would be important to set it up. Who are the heirs to the money the stories might make, how much is it or could it be, and how much trouble will those heirs be? (Again, just say no…)

But if you really feel you want to keep your friend’s writing alive, and your friend was too lazy to set up their own trusts and wills and estate planning, you need right off to get legal help setting up the bank accounts and disbursement of funds and how much you will make.

After all that is when the real work starts.

Those will be in contracts. In essence, you are starting a business with people (heirs) you report to.

I assume you are a writer because otherwise you would not be stupid enough to do this. Now you have your own writing and the estate writing to deal with. You think dealing with your own writing was hard enough, it gets worse when you add in another writer’s work.

And have heirs looking over your shoulder wondering why you are not making them a million dollars. (I am not kidding.)

So as a non-attorney, what I can suggest is that you never allow yourself to get into that situation. And if you do, make sure you make decent money off it. And have contracts for everything.

70 years is a long time and you will have to deal with this second estate in your own estate in some fashion or another.

But my best advice, my only real advice, is just say no. A hurt feeling now is a lot less than 70 years of pain and damage to your own writing career.



  • Kat Faitour

    Hi Dean,

    Excellent, frank post. But it brings me to the next question from the other side of the coin: my husband and I are childless (we have nieces and nephews, if that matters, but none of them are writers or lawyers). How do I go about deciding who to will my literary estate TO, considering what you said?

    Thanks for your advice!

    • dwsmith

      Go find an attorney who does trusts and estates and who is an IP lawyer. (Last part is critical).

      From there, your options open up depending on how big your estate is. And there are people who can be hired who run such a thing, just make sure none of them have the word “agent” in their title. Listen to the lawyer. As we just learned at WMG, don’t just trust someone.

  • Christine Valada

    Dean, you didn’t even mention the curve ball of work created under the 1909 Copyright Act, which some of our friends certainly did.

    • dwsmith

      Chris, you missed me on this one. Are you talking about the 28 year registration rules or something else?


      • C.E. Petit

        I think what she’s getting at is several changes-in-treatment (such as transfer terminations, § 203 since 1978 and § 304(c) before, and no they are not identical), problems with marking that are especially important for 1909 Act works (relevant prior to 1989 but even most IP lawyers miss that one, and let’s not get into the Pan American Convention problems…), and the utterly different rules for works made for hire. Note the “ands” in there!

        At least writers don’t have to worry about possession of or title to the master exposure that was in the camera…

        * * *

        One other thing that a literary executor needs to do: Establish a succession plan. There’s an extremely high probably that there will need to be a succession of literary executors during that post-death 70 year period of copyright (not to mention potentially even longer for some purposes). This is a corollary of “even young writers need a will!” And establishing an enforceable succession plan between literary executors, if there isn’t an enforceable one already in the writer’s estate plan, reallyreallyreallyreally requires legal advice from a lawyer in the same jurisdiction (usually same state is good enough, but not necessarily in some places).

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