Estate Planning Basics for the Self-Published Writer

by Kathryn Goldman

PlanAhead-OPNobody wants to think about it (with the exception of Harold and Maude), but everyone is going to do it.

Die, that is.

As a writer, part of what you will leave behind is your collected works – a body of work that, if attended to and managed, may thrive long past your physical demise. If you are interested in having your written work survive you to be read by future generations and perhaps provide a source of income for your heirs – you need to plan for it.

Here are some basic steps you can take to increase the odds of immortality for your written work.

Step 1: Apply for Copyright Registration

The copyright in your books is intellectual property. And just like real or tangible property—your home or your mint green 1955 Thunderbird—it becomes part of your estate to be left to your heirs.

“Register your work,” is a common theme of mine. Every chance I get I tell writers, artists and creative professionals of every stripe to do it. There are significant benefits to registering your work with the Copyright Office and I’ve outlined many of them here: Why and How to Copyright Your Self-Published Book.

An additional benefit to copyright registration is that it makes planning for the proper succession of your works just a bit easier.

The registration certificate gives substance to something that otherwise might just be considered a digital file on your computer or in your KDP account. It’s one of those important documents you hear so much about that belongs in a safe deposit box with your other important papers.

In a way, it makes your work “more real” to the family and friends you leave behind. The registration certificate is something that can be held. It makes the intangible, tangible. It becomes a concrete part of your estate.

Copyright is actually a group of rights (to publish, to reproduce, to make derivatives, to perform and to authorize others to do the same). The group of rights that makes up copyright lasts longer than you do.

If you register your copyright using your real name then the copyright lasts for your lifetime plus 70 years. If you register your copyright under a pseudonym then the copyright lasts for 95 years from the date of publication of the work or 120 years from its creation, whichever comes first.

There’s a little math involved in securing the longest period of time for copyright protection. If you’re an older writer you may want to register your copyrights under a pseudonym. If you think you will die in the next 20 years or less, using a pseudonym will provide your heirs with a longer period of time in which to exploit the copyright of your work before it enters the public domain.

If you are a younger writer, it probably makes more sense to register the copyright under your real name. That way you get the benefit of exploiting the copyright during what will hopefully be a long lifetime of your own then on your death your heirs will have the benefit of another 70 years of copyright protection.

Choosing whether to register a copyright under your real name or using a pseudonym is a personal decision and the length of the copyright term is only one of the factors to be considered when making the choice. There are other factors to consider.

Step 2: Create a Will

It’s important to decide who will inherit your property, including your intellectual property. Creating a will means that you are taking control of this decision and your wishes are more likely to be honored.

If you do not have a will, the state will decide how your property will be divvied up. And every state is different. For a basic explanation of what happens to your stuff if you don’t have a will, you can read Passive Guy’s post on what happens when an author dies.

If your body of work is significant and is generating substantial income it is a good idea to visit with an estates and trusts lawyer to design an appropriate plan for the management and disposition of your revenue streams. If your work is not yet earning significant income, it is still important to have a will. But something more simple and straightforward will suffice.

A key part of creating a will is choosing the person who will act as the personal representative for your estate. The personal representative is the individual who is responsible for gathering the assets of the estate, reporting to the probate court on those assets, paying off any creditors and managing the distribution of the remainder of the estate to the heirs.

A personal representative is not necessarily the person who will be responsible for maximizing the return on the works themselves. An individual (or company) referred to as a literary trustee, or literary manager, may be better suited to that task.

In his post on preparing his estate for his eventual demise, Joe Konrath takes the view that he’s passing on a business to his heirs. If you are a writer and you are, or have the goal of, making a living at your writing then you are, indeed, in business. Konrath believes that someone with knowledge of the self-publishing business should run that business after his death and be paid for it – a literary manager. He suggests such a manager should be paid 15% of the revenue earned. The remainder of the income, 85%, would then be divided up among the heirs according to the instructions in the will.

Konrath’s concern is that the heirs will not know what to do if they inherit a self-published legacy. He may be right.  If you do not believe your heirs are interested or up to the task, your will should include a direction permitting the personal representative to retain a literary trustee to manage your works.

Step 3: Make a List

Going to the trouble (and potential expense) of creating a will to address the disposition of your creative work is only going to be useful to your estate if your work can be identified and found. The best way to do that is by making a list and keeping it current.

The list should include the status of each work, where it is currently published, and where a copy of each manuscript is located. Include your unpublished and even your unfinished manuscripts, as well.

For a comprehensive post on what belongs on your inventory, read Fearless Inventories by Kristine Kathryn Rusch, part of her series on estate planning for writers.

Coupled with listing your work—published, unpublished, and unfinished—you need to create a list of accounts, usernames and passwords for each online service you use to run your self-published business. In addition to your revenue generating accounts like KDP, Kobo and Smashwords, remember to include login credentials for the services that help you run your self-publishing business –website login, email service provider, hosting service, PayPal—anything you use that supports the function of your creative work earning income.

Update this list regularly, as well. Twice a year. Do it when you change the clock, just like changing the batteries in your smoke detector. Spring forward, fall back, update your accounts and password list.

Step 4: Gather It Together

Make copies of your copyright registrations, list of works and accounts and keep it with a copy of your will. If you have a business plan that maps out how you intend to market your work to keep the revenue flowing and growing, put that in the envelope, too. The best place for your original, signed will is dictated by the law of your state. But a copy of all these things should be given to your personal representative.

Estate planning is part of an overall protection plan for your work. Following these simple steps will enhance the value of your body of creative work for your heirs and perhaps give your writing a shot at immortality.

Kathryn-Goldman_OpNOTE: I am not an estates and trusts attorney. The purpose of this post is to help you be more thoughtful about establishing and protecting the value of your creative work so you and your heirs can benefit from the law that ensures the exclusive rights to exploit your work after your death.

Kathryn Goldman is an intellectual property attorney who protects writers, artists, filmmakers, and businesses from having their work and art ripped off. Since she’s a lawyer, she has to mention that she’s not *your* lawyer (so this article isn’t technically legal advice), but you’re still invited to download her Rip-Off Protection Report for Creative Professionals. You can also follow her on Twitter @KathrynGoldman.

All original content by Molly Greene and guests is copyright protected – did you enjoy the article? You can show your support by checking out my Amazon Author Page – and hey, buy a book while you’re there! Or, subscribe to my blog and you’ll never miss my weekly posts. Your email will NOT be sold, shared, abused, or rented – that’s a promise. If you’re not already, follow @mollygreene on Twitter. Mwah! Thank you so much.

 

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14 Responses to Estate Planning Basics for the Self-Published Writer

  1. Belinda Pollard June 23, 2015 at 5:06 am #

    A prickly topic, Molly & Kathryn. But I’ve definitely worried about how my heirs would access all my passwords etc. You never know, it might all be worth something one day… 😉

  2. Kathryn Goldman June 23, 2015 at 8:11 am #

    Just think about Emily Dickinson. Her work was kept in boxes in her room and wasn’t published until well after her death. Some of her work is still under copyright protection today because of when it was ultimately published.

    So you’re right, Belinda . . . you just never know.

    • Molly Greene June 23, 2015 at 8:41 am #

      Kathryn’s article got me thinking, that’s for sure. I emailed a (much younger) friend who I think could handle the learning curve – my family couldn’t – and asked if she’d be interested in inheriting my books after my demise. She said she’d be thrilled to manage them and donate the income to literacy. Is that fabulous, or what?? Now to do the groundwork.

    • Art/1978 June 23, 2015 at 6:03 pm #

      Kathryn, could you kindly explain the following:

      “Her work was kept in boxes in her room and wasn’t published until well after her death. Some of her work is still under copyright protection today because of when it was ultimately published.”

      Emily Dickinson died in 1886. Why wouldn’t her un-published poems be in the Public Domain? Life plus 70 years, or to be generous, 120 years after creation?

      Source: http://copyright.cornell.edu/resources/publicdomain.cfm (“Never Published, Never Registered Works”); this link seems to suggest the works are in the PD.

      Did her estate prepare derivatives from some of her un-published works and, thus, are claiming copyrights from the date of publication?

      Where am I wrong?

      • Kathryn Goldman June 24, 2015 at 8:44 am #

        Art,

        It’s a great question. The simple answer is that the law changed. Life plus 70 years or 120 years from publication is the law now. When Emily Dickinson’s poems were published, some as late as 1955, the law was different.

        If you use the chart in the link you posted, some of her work falls into the category of having been published between 1923 through 1963, with notice and the copyright was renewed, so the copyright stands for 95 years after publication. In the case of the poems published in 1955, the copyright holds until 2050.

        Cornell is a great resource for copyright issues. Publication date can be a tricky concept.

        • Art/1978 June 25, 2015 at 3:14 pm #

          Kathryn, thank you for your clarification.

          Though all these old works created or published before 1850 should be in the PD (IMO), allow me to throw a wrench in to this discussion:

          Suppose I recently discover an un-published book written by Ben Franklin (Franklin died in 1790). Would only the Ben Franklin estate be permitted to register this book and enjoy a 95-year term of copyright protection? As I understand, I would only be able to retain the physical ownership of this book and not the copyright since I’m not an heir to Ben Franklin; is that correct?

          • Kathryn Goldman July 28, 2015 at 11:34 am #

            Art,

            If you look at the public domain chart on Cornell’s website, you’ll see that Ben Franklin’s hypothetically recently discovered, unpublished manuscript would be in the public domain and not subject to copyright protection.

            Kathryn

  3. Suzanne Joshi June 27, 2015 at 12:28 am #

    Thanks, Kathryn, for this great information.

  4. Bill Kasal July 6, 2015 at 11:19 am #

    It is my understanding that, once a work has been published via Amazon’s CreateSpace, they are the publisher if you have accepted their “free” ISBN. If I have works already published this way, can I still register them with the copyright office under my name? Am I confusing publisher with the holder of the copyright?

    • Kathryn Goldman July 7, 2015 at 10:09 am #

      Bill,

      Even though you may have used a CreateSpace free ISBN, you are the author of the book. It is the author who owns the copyright not the publisher. So, you can go ahead and register it with the Copyright Office.

      Kathryn

  5. Grace Brannigan July 14, 2015 at 10:57 am #

    Thank you for an informative post. I’m going to reblog it over on my blog because it’s such an important topic some people never think about. Having worked previously for an attorney in NY estate proceedings, I’ve prepared my own papers but still have a few loose ends to tie up. I use a 5 x 6″ small address book with all my current passwords for all the sites, etc., etc., as mentioned above. Works great for me and it’s all in one place. I also have separate paper files in folders with info as to where to find all my info.

    • Molly Greene July 14, 2015 at 2:25 pm #

      Great tips, Grace, thanks so much – I think creating a workable system is half the battle, something it’s relatively easy to keep up to date. I’m challenged just backing up my computer files regularly – accck! Thank you so much for sharing your ideas AND for sharing this post!

  6. Bill Peschel July 24, 2015 at 12:46 pm #

    FWIW, I took Neil Gaiman’s advice and created a will containing a literary trust that will look after my copyrights. His website links to a draft that you can take to a lawyer and change it to conform to your state’s laws.

    http://journal.neilgaiman.com/2006/10/important-and-pass-it-on.html

    • Molly Greene July 24, 2015 at 1:00 pm #

      Great tip, Bill, thanks so much!