Your Literary Estate, Part Two: Managing Your Work

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  • negotiating contracts for published and unpublished works,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.

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Your Literary Estate, Part One: Assigning a Literary Executor

No one likes to think about wills or insurance policies. It’s the stuff that reminds us of our mortality, yet helps define our legacy. Legacy planning requires thoughtful reflection and the selection of the correct, living people to manage it. When you’re gone, you’ll have little control over what happens next. You can either prepare for the best outcome while you walk the Earth or leave your heirs with chaos, feuding, and probate courts. Your heirs will have varying degrees of concern for your legacy, ranging from not-at-all through avarice to sincere compassion for your work. Get control of the process now.

As an author, you have a special addendum to your legacy known as your literary estate. This involves the administration of your published and unpublished work, letters, papers, royalties, and contracts. You’ll need someone you can trust to manage your literary estate who will look after both your interests and integrity as an author. The reason why you don’t see the Ernest Hemingway Big Game Rifle or the Jack Kerouac Touring Tires is because they have the correct person managing their legacies. The person who will manage your literary estate is known as a Literary Executor.

Most people are familiar with an Estate Executor—the appointed person who manages the affairs of a dearly departed. State laws moderate what an estate executor can do and how much he/she can be paid for doing it. This person is often an attorney who knows how to navigate the law and has experience dealing with heirs. Unfortunately, this person has general experience for estates and often little to no experience with the literary world and all of its pitfalls and trap doors. For that, you’ll want to appoint a Literary Executor to administrate your literary estate apart from your general estate concerns.

Your literary executor would optimally be someone who is both involved in the business of publishing and is familiar with you and your heirs. It could be an editor, agent, or fellow writer. He/She should understand both your work and intentions. This is uncovered through knowing you and maintaining an ongoing dialogue about your work. After your death, your literary executor will act in your place, even appointing the next literary executor to succeed him/her.

In the years leading up to his death, bestselling author Robert Gover asked me to become his literary executor. I was the natural choice. He was my writing mentor before I was published. I admired and understood his work. Over the years, we became peers in the industry, and in addition to being published on my own, I edited his latter novels. We were friends, and I came to know his wife and children (i.e. his eventual heirs). This is the optimal of all situations. While you’ll benefit from assigning someone who knows your heirs, aim for a literary executor who understands the business first, and then your work next.

Gover knew that his heirs would trust me and my eventual decisions, but I was powerless in managing his literary estate unless it was official. However, I learned that almost no one had information on this topic. I am a member of the Author’s Guild, which defends authors on various copyright and literary concerns, but even their legal council had no advice other than a general disclaimer that they would not be advising me on this matter. Furthermore, Gover had limited funds near the time of this death, and so hiring the correct yet expensive attorney to draw up paperwork was out of the question. If you own a wealthy literary estate or you possess the financial means, you should hire a publishing-experienced attorney to establish your literary legacy. Unfortunately for most authors, the cost of this attorney would erase any hope of profit and thereby eliminate a primary factor of managing a literary estate in perpetuity.

In the case of Gover’s literary estate, I sought a document that assigned my position. The answer was a simple letter from Gover, declaring me as his literary executor to manage all of the aforementioned factors that go with those duties in the event of his death. In his advanced age, I typed it up for him and had a professional notarize the document. A Notary Public can be found at a nearby bank, post office, shipper, or even an attorney’s office. You might have one in the family. The point was to have Gover assign me as his literary executor (and my appointed duties) in clear language on a document with a witnessed signature. Having secured that, I was a literary executor for the first time. Without that document, all control of his literary estate would be left in the hands of his heirs.

If your literary estate is significant—that which will generate an inheritance tax for example—consider having your literary executor specified in your will. This will require a visit to an experienced attorney. It’s also a good idea to sit down with your heirs in advance and explain to them who will be managing your literary estate if it will not be your heirs directly. You want no surprises. Your death will be an emotional time, and surprises will create unnecessary contentions with or among your heirs. Keep in mind that after your death, your literary executor conceptually will be the steward of your work, but in reality will be working on behalf of your heirs.

In the second installment, we’ll discuss the functions of a Literary Executor and the factors involved in managing a literary estate. (see Your Literary Estate, Part Two: Managing Your Work)

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.