Estate Planning for Writers Part 1: Literary Executor

I was doing some research on famous writers and their writing habits, when I stumbled upon Mark Twain’s Death announcement in the 1910 New York times. There was a mentioned of Twain’s biographer and literary executor, Albert Bigelow Paine.  I wrote down ‘literary executor’ determined to do more research at a later date.  With the recent tragic death of Prince and revelation that he died without a will, I realized the research on literary executor needed to be now.

Create a Will

If you don’t have a will, create one ASAP.  It does not matter if you aren’t married and have no children, you need a will.  Look up the laws in your respective state, but some states allow for handwritten wills, which is a holographic will – I would just have it signed by  witness and have it notarized.  Or you can use LegalZoom.comwhich has packages as low as $70 and up to $200.  An Attorney can do some estate planning including a will for you; if you have the means to employ an attorney look up one that specializes in Estate Planning within the state you reside in.

What is a Literary Executor?

As I’ve recently learned you can more than 1 executor in your will.  A general executor will have responsibility over settling your estate, but  a literary executor would have full authority over your literary property.  Depending on how you lay it out in your will, this person could finish any unfinished manuscripts, enter contracts with publishers, and collecting royalties.  Under the copyright act this person can have the right to terminate any contracts you entered in while living.

Here are some people who named a literary executor:

• Oscar Wilde named Robert Baldwin Ross a fellow writer and known lover of Oscar.
• Albert Einstein named Otto Nathan, professor of economics at Princeton University and friend of Albert
• J.R.R. Tolkien named is youngest son Christopher Tolkien,who is still living and managing his father’s literary assets
• Friedrich Nietzsche named his sister Elizabeth who notoriously committed fraud by completing and editing his incomplete manuscript “Will to Power” by making it line up with Nazi Ideology.

Albert Paine was a close friend of Mark Twain and his biographer. He published 5 works regarding Twain’s life.

Questions to Ask Yourself

If you do not name a literary executor, your general executor will have full authority over your intellectual property and literary assets.  Here are some questions to ask yourself in regards to setting up a literary Executor (as found on CopyLaw.com):

• Will the Literary Executor have the sole and exclusive right to make all decisions regarding appropriate publication, republication, sale, license or other exploitation of your work? Or, should she merely be appointed as an advisor to the General Executor? 

• Will the Literary Executor be responsible for preparing unfinished or unpublished manuscripts for publication and seeing those works through publication? 

• Will the Literary Executor have the right to terminate copyright licenses? 

• Will she have the power to destroy any letters or papers she believes should be destroyed? 

• In return for her services, will the Literary Executor receive a fee or commission for her services? What is fair compensation? What about reimbursement for expenses? Will the Literary Executor be required to maintain a separate bank account for such monies? 

• Will the Literary Executor have the sole right to sue for infringement of copyights? 

• Will the Literary Executor have the authority to pay attorneys, agents, subagents and others? 

• In the event the Literary Executor is unwilling or unable to perform her duties, what are the provisions for appointing her successor? Or, will the General Executor assume those duties?

Hopefully these questions will help you in selecting a literary executor, if not I hope it helps you in discussion with your estate planning  or intellectual property attorney.

You may not be a famous or rich writer and you may feel planning for your literary assets after death is necessary; but here are a few writers who only became famous after death:

• Edgar Allan Poe
• Emily Dickinson
• Franz Kafka
• Anne Frank
• Henry Thoreau

Setting up a literary executor and protecting  your intellectual property will protect your legacy.

Please note: I am not an attorney, so any information in this post is for general purposes only and should not be considered as specific legal advice.