Although your death is probably a long way off, it is important that you have a plan to ensure that your affairs are settled in the way that you want. An estate plan crafted by an experienced estate planning attorney is a legally enforceable set of documents that allows you to name who will have the authority to make decisions for you in the event you cannot (agent under a financial or medical power of attorney); who will take care of your minor children (guardian); who will wind up your affairs upon your death (personal representative, executor, or successor trustee); and who will receive your accounts, property, and artwork (beneficiaries).
You have various options regarding who will receive your artwork. You could
- instruct your personal representative, executor, or successor trustee to sell any of your artwork in your possession at your death;
- designate specific individuals to receive it;
- have it held by a trust or foundation to be lent or licensed after your death; or
- provide instructions to donate your work outright to a museum, university, or other organization that might benefit from it.
Steps You Can Take to Begin the Process
The first step is to catalog your artwork, including pieces that you have sold. Make sure to specify to whom they were sold and for how much. This information can be helpful in valuing artwork that has not sold and providing a list of potential buyers for when you pass away. You should also include any pieces of artwork that you have lent. This knowledge will be helpful for your loved ones to determine who has the artwork and under what circumstances it will need to be returned. Your list should also include any pieces that have been licensed to someone else. It will be important for your loved ones to know about this stream of income, which could continue after your death. Also consider including a list of pieces that you have gifted to individuals or donated to charities. Be sure to include any pieces that you have kept for yourself.
After you have compiled a list of your artwork, it will then be important to determine the value of any piece that has not already been appraised and that is still considered yours (having been neither donated nor sold). This process can help you understand the value of everything you own (an important step in the estate planning process) and determine if you have adequate insurance to cover your artwork’s value. Just like other pieces of tangible personal property, your artwork can be susceptible to theft and destruction and needs to be protected.
The last step is for you to meet with us to start or review your estate planning. During this meeting, we can discuss whom to put in charge of your affairs at your death as well as during any period in which you cannot make or communicate your own decisions. We will also discuss your wishes regarding your artistic legacy. We can discuss your fears, concerns, and objectives to craft a unique plan.
Remember Your Copyright
A copyright protects “original works of authorship”[1] such as books, movies, songs, computer software, photographs, and architectural works. These works do not have to be published to be protected, but they generally have more commercial value after publication. If you own the copyright to your artwork, both the work and its copyright should be included in your estate plan. If the copyright is not specifically mentioned in your will or trust, it will transfer to your heirs by a residuary clause, which distributes all property not already addressed. As a result, one person could end up with the work and another with the copyright.
However, it is important to note that a copyright includes your right to terminate most transfers or licenses of the copyright at a future date. You cannot waive or transfer this right to someone else during your lifetime, and it passes to your surviving spouse and children when you die. It includes the ability to terminate a transfer of a copyright to a trust. An exception to this rule is transfer of the copyright by a will, which cannot be terminated by your spouse and children.
We Are Here to Help You and Your Legacy
We understand how overwhelming it can be to think about what to do with your prized artwork at your death and to make other important decisions about your care and the care of your loved ones. We are passionate about working with you to create your next masterpiece: a comprehensive estate plan. Call us to schedule an appointment.
[1] 17 U.S.C. § 102 (2018).