If you are an artist, it is important to include your artwork in your estate planning. Who can control your artwork if you become incapacitated, including matters such as selling, loaning, or licensing your pieces.
What do you want to happen to your artwork after you pass away? Options to consider include:
- instructing your successor trustee or personal representative to sell any of your artwork in your possession at your death;
- designating specific individuals to receive it;
- having it held by a trust or foundation to be lent or licensed after your death; or
- providing instructions to donate your work outright to a museum, university, or other organization that might benefit from it.
Catalog Your Artwork
The first step is to catalog your artwork, including pieces that have been sold, loaned, licensed and gifted.
List pieces that were sold, to whom they were sold, and the sale price. This information can be helpful in valuing artwork that has not sold and providing a list of potential buyers for when you pass away.
Also list any pieces of artwork that you have loaned. 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.
If you have licensed any pieces, list those. It will be important for your loved ones to know about this stream of income, which could continue after your death.
In addition, list pieces that you have gifted to individuals or donated to charities.
Finally, list 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 should be insured against theft and destruction.
Remember Your Copyright
A copyright protects original works of authorship such as poetry, novels, movies, songs, computer software, photographs, works of art, 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.
Protect Your Legacy
Creating a comprehensive estate plan will help to protect your legacy. Your plan should address your possible incapacity and authorize someone you know and trust to make decisions for you, both financially and medically, in the event you cannot. Your plan should name guardians for any minor children. In addition, your plan should authorize who will wind up your affairs upon your death and name who will receive your assets, property, and artwork.
Schedule time to meet with us to start or review your estate planning. We can help you craft a unique plan to address your values, concerns, and objectives.