When you pass from this life, your literary executor will be hard at work. (see Your Literary Estate, Part One: Assigning a Literary Executor) A literary executor with full power will manage your work for the benefit of your heirs and receive some form of payment as a result. Some of your literary executor’s duties will include
- overseeing existing work and contracts,
- negotiating contracts for published and unpublished works,
- perhaps canceling contracts or activating contract options,
- managing your letters and papers, including perhaps disposing of portions,
- filing the proper papers regarding rights and copyright,
- evaluating your literary estate for various assessment purposes, and
- assigning a successor to his duties if he/she cannot perform them.
Your literary executor will not have control of your work’s copyright (i.e. ownership). That will belong to your heirs. However, a literary executor with full power will not have to consult your heirs during negotiation of those rights. If you do not want your literary executor to manage certain work or have specific powers, including exclusive negotiation rights or the assignment of a successor, these aspects should be specifically outlined in the document that assigns your literary executor. One compromise is to have your literary executor act as an experienced advisor to your heirs, consulting with them on all decisions and then implementing agreed upon terms.
Assigning a literary executor is not all about contract negotiation and oversight. It also involves handling your literary papers and letters. Robert Gover had told me that some of his manuscripts and letters were already stored at the Boston University’s Howard Gotlieb Archival Research Center, and so it made sense to move his remaining papers to that institute—a process that took over a year to bring to fruition. Otherwise, I would have had to locate a respectful archive for his papers.
For the Eric Hoffer estate, his papers had already been stored at the Hoover Institute, but with regular rights inquiries, it was important to have access to existing contracts in order to help avoid copyright conflicts. I began collecting contracts before his initial heir died. (I was not there when Hoffer died, but brought on by his initial heir.) Obtaining copies of existing contracts is a protracted process. In my experience, publishers will be intentionally unhelpful. They have a long history of hiding royalties from authors, as well as assuming rights that they had never obtained. Make sure your literary executor knows everything you do, so he/she can make the best decisions. Slapping a firm letter on a publisher with the power of an informed literary executor is better on any day than filing a lawsuit. The big publishers will out-wait and out-lawyer you every time.
Unless something unusual happens like a late surge in the popularity of your work, managing your literary estate requires the most work immediately following your death. First, there are your papers to deal with. Also, your literary executor might be called upon to assess the value of your literary estate. During probate or later financial inquiries, your literary estate might be measured regarding worth and potential earnings.
Perhaps one of the most important factors of managing your literary estate is maintaining the integrity and control of your work. Try to have your literary executor understand you and your work as much as possible, and inform your literary executor as much in advance about your literary state of affairs. Provide copies of all literary contracts and letters of concern. Specify where you want your papers stored and when they can be viewed by family and the public. (Sometimes a hold on access for a period after your death is appropriate.)
Your literary executor might even have to destroy portions of your papers in order to preserve your legacy. If you trust your literary executor, and you should, give him/her that right. He/She will be looking out for you in your absence. As authors, we sometimes hold onto early, inferior manuscripts that we should have burned a long time before our passing. Do you think Emily Dickinson wishes she had a literary executor who might have destroyed the so-so novel of a legendary poet and kept it from being published? From what I’ve learned about her demanding and independent personality, I would guess the answer is yes.
Considering the effort that might be in store for your literary executor, a 10% to 20% payment on royalties is reasonable. (Again, your state laws may limit/specify executor payments.) Your literary executor likely will be doing all of the work, while your heirs cash checks. For Gover, I do it as a labor of love. For the Hoffer estate, I field regular rights and usage inquiries that must be investigated, negotiated, and perhaps declined. It is a nontrivial effort, which the earnings percentage that I receive helps salve.
As I write this article, I realize that I have not yet considered my own literary executor. I have published several books and scripts, and there are various contracts, royalties, and projects in the works at stake. Furthermore, I have specific desires about how I’d like my work to be managed in perpetuity, and I also need to consider the succession for the literary estates that I handle. While I hope to be around for some time yet, I plan on lining up my literary executor and successors well in advance. Many of those people are already obvious to me. I imagine your potential literary executor will be obvious to you. Don’t wait too long. Solidify your literary legacy now.
The above article is practical advice for authors, not legal advice for individuals setting up a will. Probate laws and requirements vary from state to state. Seek professional advice where necessary.
Christopher Klim is the author of several books including the novel, Idiot!, and the short collection, True Surrealism. He is currently working on a novel trilogy about the space program past, present, and future.