Wills, Trusts, and Probate

Theodor Geisel — otherwise known as Dr. Seuss — died September 24, 1991. Yet in 2019 he managed to make $19 million dollars for his estate. Michael Jackson died in 2009, but in 2019 made $60 million. He was the highest paid dead celebrity that year. Second place went to Elvis.

How do they make that kind of money from beyond the grave?

Answer: Copyright.

You've worked hard to not only create your books, but also your publishing company. While death is never a pleasant subject to ponder, there's no avoiding it in the long run. After all that work, most authors wish to protect their legacy. They want some say in how their work is used, who owns it and for how long, and what that owner is allowed to do with it — long after they're gone. Most wish to see their loved ones benefit from their works and receive the income from them after they're gone.

The popular misconception is that copyrighted material enters the public domain when the owner dies. This is far from the truth.

A Word About Copyright

The Copyright Act of 1976 — and the extension act of 1998 — established the terms of protection as the life of the author plus 70 years. This applies to works created through joint efforts as well. Should the work be produced and distributed via the author's publishing company, the protection is defined as 95 years from the year the work was first published.

Who takes ownership of your copyrights is not something to procrastinate about. Not everyone dies late in life, and the mess left behind by a failure to plan ahead can cause an assortment of problems. Having a will that spells out the who, what, and how your estate is to be distributed will avoid those problems.

A good example of poor planning is Prince Rogers Nelson — otherwise known as Prince. When he died in 2016, he left behind an estate worth hundreds of millions of dollars. Yet he never took the time to write a will. His death resulted in a years-long series of court battles over who owned his estate. This kind of battle often results in estranged families and large amounts of money being siphoned off to attorneys. The banks and lawyers involved in settling Prince's estate racked up fees totaling $9 million in less than twelve months. An even larger amount went to the IRS. In the end, the six heirs got much less than they could have if Prince had taken the time to write a will.

Ownership of your copyrights is usually transferred to the heirs of your estate. Wills and their execution are subject to local and state law, and each state has its own particular way of doing things. Typically an heir is defined as your spouse and/or children, or other family members if you are unmarried and do not have children. You may wish to specify that a particular person or entity receive ownership of your copyrights, and you can use a will to name that beneficiary.

Transferring Copyright Ownership

If you've transferred your copyrights to your LLC, you can specify who will receive ownership of the LLC and the copyrights it holds. If you've signed any agreements involving those copyrights, they remain in force — your death does not nullify an agreement or cause it to expire early unless specific language to that effect is included. If a copyright has been licensed, the license owner retains the specific rights granted in the agreement for as long as the agreement should last or until the copyright expires.

Estate attorneys can help draft a will that ensures your wishes are clear and unambiguous.

You may also wish to place limits on how a beneficiary can use the copyright. An actor or musician might deny their image or music be used in advertising or for any political purpose — the same kind of restriction is available to authors. If the desired heirs are too young to take ownership, the copyrights may enter a trust that allows the beneficiaries to benefit from them until they reach a certain age, at which point full ownership transfers to them.

Will or Trust?

A will is a simple legal document whose goal is to provide directions for your heirs and the state for how you wish your property to be distributed after your death. Every will requires that you appoint an executor — your legal representative named in the will — the person who will carry out your wishes as instructed.

A will goes through what is known as probate — the execution of the will's or trust's instructions, subject to a local court that oversees the administration. The court performs two major functions: determining whether the will is valid, and determining whether the executor is distributing the property as you set forth.

Unlike a will, which goes into effect when you die, a trust — whether a living trust or an irrevocable trust — goes into effect when it's created, and can allocate property before your death or after. A will can also create a trust upon your death, known as a Testamentary Trust, often used when the heirs are young children.

In the case of a trust, a third party is usually employed to oversee it. This person — or institution, such as a bank or a law office — is known as a trustee. The trustee administers the estate as outlined in the will, holding legal title of the copyrights for the beneficiaries for a predetermined time. A trust manages and distributes only those assets that have been transferred into it.

Most executors are trusted relatives or the family lawyer. Either can divide the estate as instructed when it comes to tangible assets — property, money, physical belongings. But for authors, an executor may not be enough. You may also need what's known as a Literary Executor.

Literary Executors

Being an independent author requires constant maintenance and upkeep. Advertising needs to take place. Websites need to be maintained. Sales need to be tracked. Fans need to be responded to. This requires an actual human person who knows the ins and outs of the publishing world. Unless your executor is also an experienced indie author, you'll need to find someone who is — if you want your heirs to capitalize on your copyrights after you're gone.

The executor has a fiduciary responsibility for settling the estate after your death per the directions in the will. An executor will collect and identify the estate's property, locate all creditors, pay expenses and taxes owed, and act as the business manager of the estate.

Writers, however, should consider appointing a Literary Executor in addition to the first executor. The Literary Executor is in charge of your literary works and will:

• Negotiate contracts with publishers

• Maintain and protect copyrights

• Collect and distribute income

• Arrange for the publication of any unpublished manuscripts you've designated for publication

• Track and audit sales reports

• Manage your online presence, including blogs and social media

• Perform advertising

For the role of Literary Executor, you may wish to retain someone who does not have a personal interest in your estate — a literary agent, a fellow author, or a trusted publishing industry professional. The best choice is someone with both knowledge of the independent author profession and the business skills needed to navigate the publishing field.

What Your Literary Executor Will Need

If you decide your estate is large and complex enough to need a Literary Executor, give them every tool they'll need to do the job. Here's what to prepare:

• Access to royalty reports and financial records. If you have an accountant, include their contact information — this gives the Literary Executor an immediate understanding of the size and complexity of your estate.

• A complete list of your literary works along with the copyright registration for each. Specify the persons, organizations, and contact information to which any rights are granted. Include all works, published and unpublished. Specify which works may be published after your death and which you wish to remain unpublished.

• All contracts with publishers, studios, distribution platforms, artists, agents, and printers — including names, contact information, and copies of all licenses. Don't forget cover art and illustration contracts, audio deals, and translation contracts. If works need to be published after your death, include names and contact information for your cover artist, editors, formatters, and marketing people, so the branding of your works can be maintained.

• Passwords and login information for every sales platform, website, and social media account related to your publishing business. Include domain names and their expiration dates, email accounts, and any service you or your company use to market your books. Include cloud databases containing your work and any email marketing services. Anything with an auto-renewal should be listed with the amount being billed and the expiration or cancellation deadline.

• Banking information — any accounts related to your business, as well as any checks, credit cards, or debit cards attached to them.

• A copyright page template, list of ISBNs, a DMCA takedown notice template, and documentation that grants your Literary Executor the power to bring a lawsuit for infringement of your copyrights.

• Documents specifying how long you wish your Literary Executor to serve, who their replacement will be, and who will act as an alternate if needed.

• Any online communities, chatrooms, or forums you visited regularly, so your Literary Executor may visit them and inform them of your passing.

Estate Planning in the Digital Age — What Author Wills Must Address

The traditional estate planning model was designed for physical assets and traditionally published books with established publisher relationships. The indie author's estate has a different profile — one that requires specific provisions most estate attorneys won't think to include unless you raise them.

Platform Accounts

Your KDP account, Kobo account, Apple Books account, IngramSpark account, and all other publishing platform accounts hold your books and receive your royalties. These accounts are tied to your email address and password — assets that die with your password management unless explicitly documented for your executor. Your will, or a supplementary digital asset document, should identify every platform account, where login credentials are stored, and what your wishes are for each: continue publishing, unpublish, or transfer to LLC ownership under a new member.

Email Marketing Lists

Your reader email list — often your most commercially valuable asset after the books themselves — is stored in your email marketing platform. Who controls it after your death? Can your estate continue sending newsletters? Who decides? These questions need answers in your estate plan.

AI-Generated Content

If any of your published books contain AI-generated content, this should be noted in your estate records. The copyright status of AI-assisted works depends on the level of human creative contribution — a distinction that may matter to your heirs and their ability to defend or license those works. See The Importance of Cover Art and Editing for Indie Authors for the broader picture on AI disclosure and copyright considerations during your career; the same questions follow your estate into its future.

Using AI Tools to Prepare for the Estate Planning Conversation

AI tools can help you prepare for the estate planning conversation with your attorney by generating a comprehensive inventory of your digital publishing assets — every platform account, every pen name, every series, every licensing agreement currently in effect. Walk into your estate attorney meeting with this list and you'll get dramatically better estate planning coverage than an author who shows up with no documentation of their publishing business.

How to Get Started

The first step is to list every copyrighted or potentially copyrightable work you've created. Split that list into its two parts — registered and unregistered — and determine what needs to be addressed. What works have been registered? What works still need to be? Where is the paperwork for each? Are there any licensing agreements involved, and where is the documentation for those?

Once you have that picture, determine who will be your executor. Is this person capable of maintaining your copyrights and publishing business? Will you need a Literary Executor? Who will that be?

Then divide the pie: clearly describe who gets what from your estate, define any restrictions and timelines you wish to be in effect, and specify who gets the profits versus who gets the actual assets. Make sure you cover the entire length of the copyright period.

Before your will is completed, speak with your executor about both its existence and their role in it. If you intend to have a Literary Executor, the first executor should know why that person is needed and what to expect from them. Speak with the Literary Executor as well and inform them of how you'd like them to handle your collected works.

Revisit your estate plans every two years alongside your lawyer, as part of your periodic business review — to adjust the will or trust as needed to accommodate personal, career, family, and property changes.

A Note on Video Wills

In a world where everything is captured on video, you may be tempted to simply turn on your camera and dictate your wishes into it. While this has been made popular in novels and movies, there's one key issue: it won't create a valid will.

For a will to be valid in the eyes of the court, it must be on paper and signed. In most states, it must also be dated and signed by two witnesses — who will testify, if necessary, that you appeared to be of sound mind and acting of your own free will. However, if you strongly suspect your last wishes will be challenged, it doesn't hurt to video the actual signing of the will, with your lawyer and the two witnesses asking you some key questions beforehand. While not considered legal substantiation, it can serve to demonstrate that you were of sound mind and not being manipulated when you signed the document.

ScribeCount Author OS — AuthorVault as Your Estate Catalog

AuthorVault in the ScribeCount Author OS maintains a complete catalog of your publishing company's assets: every title, every format, every ISBN, every platform listing, every series record. For estate planning purposes, this catalog is exactly what your Literary Executor will need to identify, manage, and monetize your copyrights after you're gone.

A well-maintained AuthorVault record — kept current throughout your career — becomes the estate document that tells your executor and Literary Executor what you own, where it's published, and how it's been generating income. The Sales Dashboard's Historical view shows the income trajectory of each title over time — the commercial context your Literary Executor needs to make intelligent decisions about advertising, pricing, and catalog management on behalf of your heirs.

Conclusion

Your books and your publishing company are not just creative achievements — they are commercial assets that will continue to generate income long after you are gone. Copyright law protects that income stream for 70 years past your death. The question is not whether your heirs will benefit from your work — it's whether they'll benefit as much as they could, or whether the courts and attorneys will eat the difference.

Write a will. Address your digital assets specifically. Name a Literary Executor who understands the publishing business. Keep your AuthorVault current so your executor knows exactly what your estate contains.

Wills, trusts, and probate are part of business. A little work now can avoid a big headache — and a lot of money lost — in the future.

Prince left his heirs with millions of dollars less than they could have received, simply by failing to plan. You know better now. Do the planning.

— Randall