I had to rewrite my Will and Powers of Attorney today.

That’s a good thing! My old Will was verging on twenty years old (yikes!) and it was very out of date. It also meant that, for the first time, I got to enshrine clauses about my literary estate and the royalty beneficiaries for my writing. That means that I put some extra bits in the Will that makes it clear that when I die, I will be bequeathing the money my books will keep earning to specific people, in a specific way, while also legally handing over control of managing my copyright, and any contracts to republish, translate, or adapt my books when I’m gone.

The rules around all of that stuff are intricate, but I promise, they’re not complicated. It’s just a matter of understanding copyright law in your country, what kind of archiving is required to support that copyright, and figuring out who you want to manage any deals that might need to happen after you’re gone. Oh, and who gets the cash, of course.

Before We Begin

As I am both Canadian, and a member of The Writer’s Union of Canada, I’m going to be speaking from a generally Canadian point of view. For better understanding of the specifics of how Literary Estate Planning works in your own country, I warmly encourage you to reach out to the writing Guilds, Unions, or Associations where you are. TWUC offers its members a booklet about estate planning, as does the Writer’s Guild of Canada (a sister union for screenwriters), as do the Writer’s Guild of America East and West.

And if you’re not a member, most Guilds and Associations are happy to share resources with emerging writers, and offer workshops or talks. Failing all that, if you have a friend who’s a member, I’m certain they’d be happy to share their resources with you.

The first thing to understand when prepping your Literary Estate is:

What Will I Be Bequeathing?

As I tend to use The Hobbit as the example in all my Words for Writers articles lately, I’m going to use that as an example this time, too.

The Hobbit was published in 1937, and The Lord of the Rings was published in three volumes over 1954-1955. J.R.R. Tolkien died in 1973. At the time, copyright law in the UK stated that copyright was protected for Life of the Author + 50 years. So, copyright on Tolkien’s solely-authored works existed for the whole of his life, up to his death in 1973, then an additional 50 years, which takes us to 2023.

Even though he was dead, all the money the sale of his books earned, plus control of his intellectual property (”IP”) remained in the control of his Literary Estate (inherits IP) and Literary Beneficiaries (inherits royalties). Which means for the 2001 Lord of the Rings films, Newline Cinema and Peter Jackson had to get permission from someone, and pay someone, for the right to adapt the books into a film trilogy.

In this case, that someone was the professor’s son, Christopher Tolkien. He manages his late father’s copyright and oversees the financial interests collectively with a legal organization called The Tolkien Estate, which distributes the earnings to family trusts and their registered charity The Tolkien Trust.

Christopher also compiled his father’s notes and, along with Canadian author Guy Gavriel Kay, published The Silmarillion in 1977, extending copyright an extra five years to 2027.

Then copyright law in the UK changed to be Life of Author + 70 years, which means the Tolkien Estate now has control of the complete intellectual property portfolio until the year 2047. Until then, studios such as Newline and most recently Amazon, have to negotiate with the Estate and its agents to make further adaptations such as films, radio dramas, video games, card games, translated editions, musicals, etc. And the profits thereof go to the Tolkien family trusts and charities.

Okay, you may be saying, that’s all well and good for the Tolkiens, but what about the rest of us small potatoes? How do we go about ensuring IP protection and that the money your books make is distributed to the people you want to benefit from it when you don’t have vast wealth and a whole company to organize it for you?

It’s just a matter of having a really good think about who you trust to do the best by your writing, and who you want to benefit financially from any future sales or fees. And, as with your personal Will and Estate, your Executors (the person(s) is in charge of doing all the legal stuff to get you declared dead), and your Beneficiaries (the person(s) who get all your money and stuff when you’re dead), don’t necessarily need to be the same person if you don’t want them to be.

What Happens If I Don’t Name My Literary Executor and Literary Beneficiary?

Your IP may be treated as Public Domain (anyone can publish anything without permission or fees paid to your estate), and any moneys made from the sale of your work will likely be absorbed by the publisher and/or your literary agency (if you have one).

Now obviously your loved ones could fight this, but without signed by you prior to death and notarized by a legal professional naming them as the executors and beneficiaries of your literary estate, the probate process could be messy, expensive, and long.

So Why Go to the Trouble?

• You may feel it doesn’t matter because you’re not a big name, or famous.
  • While it was an open secret in her personal circle that she was the anonymous author behind Sense & Sensibility, Pride & Prejudice, Mansfield Park and Emma, and she was just starting to claw her way out of debt and make money, Jane Austen died a well-loved author, but not wealthy one. The tragedy of her life is that she didn’t become a literary superstar until after she was dead. Luckily, through some clever business acumen, she’d retained the copyright on her books in an age when it was normal for the publisher to buy it outright, and so her family became the beneficiaries of her copyright and monies when her popularity really exploded. Jane Austen’s work is now within the Public Domain, and the Austen / Knight families are no longer in control of, nor financially benefiting from, their Aunt Jane’s estate. But they did while those who had loved and remembered her still lived. And for a family that was always just on the brink of financial ruin, I’m sure that was a great relief and benefit.
  • Just sayin’.
• You don’t trust any one to manage your legacy.
  • You don’t have to appoint a person. You can appoint an academic institution, a charity, or a social organization as your executor and/or beneficiary. The only caveat is that I really, really recommend you have a frank conversation with the organization you want to appoint in advance, to see if it’s something they’re actually willing to take on. Don’t spring it on them with your death.
  • Also – you can appoint an org to be your beneficiary without needing to appoint them to be your literary executor. They can benefit from the money without having to manage the copyright. This is an especially good arrangement if you have literary agent who can mange the estate while the charity/org receives your percentage of the royalties.

• You self-publish.
  • Any form of publishing is valid. If the book has an ISBN and the copyright is registered legally in your country, and you make money from the sale of those books, then it is subject to the same rules about copyright and literary estate protection.

• You want your books to be taken down or removed from sale upon your death.
  • You still have to appoint someone to do that, and give them the legal power and financial/account information to do so. In which case you still have to name a Literary Executor and Beneficiary of any monies that your books may earn before the takedown is complete.

Protecting Your Legacy

Okay, you’re convinced. Great! Now, how do you go about actually doing it? The first thing you’ll need to decide is the following:

1. Who gets the money when you’re dead?
2. Who legally owns the copyright until it runs out, and your IP enters the Public Domain?
3. Who will you appoint to make the decisions about your estate, protect your copyright, and sign contracts on your behalf when you’re dead?
4. Where will your literary-related stuff go? (Your personal archives)

Beneficiary of Royalties

If your books continue to sell after you’ve passed, then the money has to go to someone. You can choose one or a combination of:

• Person(s)
  • You can name a person in your will whom you want to be the recipient of your royalty money, or split it by percentages between more than one person. It would be up to them to agree, after your death, how to manage the ongoing financial obligation of receiving and splitting the money (like setting up a dedicated joint account for your royalties to funnel into, etc.) You can help this along prior to your passing by having a frank conversation with them, and setting up the account(s) yourself, and informing your agent where payment should go, if you have one.
  • You can also set up a trust that the money feeds into, (i.e. an Education Savings Account for your niblings), which they can access at a certain age or milestone.
• Charity(ies)
  • J.M. Barrie gifted copyright of his complete Peter Pan IP to the Great Ormand Street Hospital for Children, and the institution has benefited financially from that gift for over a hundred years while granting permission to film companies, animation studios, and dramatists. They even officially published a sanctioned sequel to Peter and Wendy in order to extend copyright another hundred-or-so years. You can do something similar if you have a charity that has helped you out in the past which you’d like to repay, or if there’s an organization like an animal rescue or research body whose work you want to support.
  • Your lawyer will be able to look up whether the charity is registered with your federal government is able to accept ongoing donations from your royalties.
  • In the case of needing to enact a “wipe-out clause” (i.e. all of your beneficiaries also die), you might wish to choose a charity as a back up. For me, I chose a writer’s fund that has given me a grant in the past, and helped me stay afloat during the pandemic. I liked the idea of my money going to support other writers in dire financial straits.
• Guild/Union/Professional Organization/Academic Institution/etc.
  • You can set up a recurring donation of your royalties to support a Writer’s Guild or Union, or any other arts organization that you are fond of, or are a member of, as an estate gift. (Check out their donor walls and pages, you’ll always see “The Estate of…” on the list.)

• Your Agency
  • Please note that the percentage your agency takes from your royalty will jump after your death. It’s not uncommon for the percentage to be 15% while you’re alive, and 30% after your death. But if you feel like it, you can bequeath them the full 100%. That’s up to you, and depends your relationship with your agency.

Ownership of Copyright Law

Generally speaking, in most English-language countries, copyright expires on December 31^st at 11:59:59pm, a specific number of years after your death. It’s expressed as LIFE + ## Years (at the end of the calendar year).

According to current copyright laws, that is LIFE + 50 in New Zealand, LIFE + 70 in Canada, Australia, the EU, and the UK, and LIFE + 95 in the USA.

Laws in your country may be updated, which usually changes the number of years that copyright remains valid after death, so check it every once and a while and update your codicils/instructional documents for your Literary Executors where necessary.

Management of the Estate

There is a lot less work involved in managing your literary estate than you think. They really only have to:

• Preserve your archive.
  • They will need to keep your boxes of marked up manuscripts, scribbles, hard drives, old CDs and floppy disks, notes, etc. dry, safe, and somewhere accessible. They may be asked to provide copies or access to researchers, students, or anyone working on an adaptation or translation.
  • They don’t even have to retain it personally. Either you or your executor can arrange for your archives to be donated to your alma mater, to relevant museum or social archive, or to a writing organization or charity for preservation and research access upon your death.
• Retain documents stating that you have bequeathed them the copyright and give them permission to manage it on your behalf (i.e. keep a copy of your will and any accompanying documentation in their own files).
• Manage negotiations and sign contracts on your behalf for adaptations, translations, reprints, etc.
  • They don’t have to do this alone; if you have an agent when you die, then your agency will be the first point of contact for all such inquiries, and will do all the negotiating on their behalf. Ensure that your agency agreement includes a clause about continuing to manage your estate after your death.
  • If you don’t have an agent, your executors can hire an entertainment manager/lawyer to take care of all the nitty-gritty.

Literary Archives

Unless your death is sudden and unexpected, the best practices would be to start gathering your archives into a organized and well-labelled box(es) when you reach your twilight years. Whether this is physical or digital, or a combination of both, you’ll want to make it easy for your executors to both find and dig through it. In this case, you’re going to want to include anything that:

• Proves you wrote what you wrote.
  • This is stuff like your physical notebooks, napkins you’ve scribbled on, print outs of manuscripts with your red-penned edits written on them, deleted scenes, digital folders with sequential drafts, etc.
• Provides social context for your work.
  • Reviews, newspaper clippings, letters to your friends whinging about your writer’s block, videos of keynote speeches or talks you’ve given, congratulatory cards you have received, etc.

• Is a digital archive.
  • Hard drives, floppy disks, thumb drives, etc. with numbered drafts and email chains, etc.
  • Provide access and password information for any digital archives stored in the cloud.

• Is a neat object connected to your writing career.
  • Think about museum exhibits you’ve seen for famous authors. It’s not just manuscripts and letters, but usually things like posters for your first book launch, a pressed flower from a congratulatory bouquet, photographs of people cosplaying as your characters, your favourite mug, the feather quill your signed your debut with, the notebook that was too pretty to write in, the program from the award ceremony you were long-listed for, etc.

Having said all of this – you don’t have to be a hoarder.

There is no expectation that you’re going to be handing over a hundred boxes when you’re ready to offload your archive. And if you’re not an on-paper creator, you don’t have to change your process simply for the sake of spawning a physical archive.

Basically, provide anything that could be used to defend your works in a plagiarism case, anything in your handwriting, or anything with your digital fingerprint on the drafts. What you’re doing is making the work of any PhD student or museum curator that would like to write about you as easy as you can. (Or, in our abovementioned case of Tolkien, anything your heirs or filmmakers might want to read to help them understand your creative process and worldbuilding better.)

Creating the Paperwork

This is going to come in two parts –

A Bequeath in your Will

Your secondary document is going to do the heavy lifting in this package, so all you really need to do is include a clause or two in your personal will that outlines: a) who you are gifting your copyright to, b) who you are gifting your royalties to, and c) who you are asking to manage your estate.

In case it’s a) my siblings, b) my niblings, c) my agent.

This is the language my lawyer put in my will, which I am sharing with his permission:

For purposes of this Will, my “Literary Property” shall mean all copyrights, copyright renewals and extensions, manuscripts (published and unpublished), literary works, royalties, advances, licensing rights, publication rights, translation and adaptation rights, and all other intellectual property rights arising from my work as an author, together with any income derived therefrom.

I GIVE AND APPOINT to [NAME] presently of [LOCATION], and [NAME] presently of [LOCATION], as Literary Trustee to my Literary Property, jointly and severally, to be held, managed, and administered as the [NAME OF MY TRUST] for the benefit of my Trustees in equal shares. I GIVE AND APPOINT to my Literary Trustee all my Literary Property wherever located including any literary property over which I may have a power of appointment, upon the following trusts:

a. I DIRECT my Literary Trustee to divide and transfer the residue of my literary estate equally among the following Beneficiaries who are alive at my death:

i. [NAME AND LOCATION]
ii. [NAME AND LOCATION]

PROVIDER HOWEVER, if either named Trustee is unable or unwilling to serve, the remaining Trustee shall serve as sole Trustee. If neither is able or willing to serve, I nominate my literary agent and agency as sole Trustee.

My Trustees, in cooperation with my current literary agent and agency, shall have full power and authority to manage my Literary Property, including but not limited to the power to: negotiate and execute publishing, licensing, translation, film, and adaptation agreements; authorize new editions or posthumous publications; collect royalties and enforce copyrights; engage literary agents, attorneys, and accountants; and take any action a prudent owner of literary property would take to preserve and maximize its value.

Additionally, if you have an LLC or Incorporated Business for your writing, you will need a Primary Will for your personal estate, and a Secondary Will for your business/writing estate. Your lawyer will be able to explain what each is and what they encompass in greater detail, but basically it ensures that your personal wishes and money, and your corporation’s business and money, remain separated and are handled as separate legal matters after your passing (even if you name all the same people in both). This is important for tax purposes.

A Secondary Document/Codicil/Appendices

The Will and Powers of Attorney are for the legal side of things — the probate officers at court, the government, the lawyers, the banks, the credit card and utility companies, etc.

The second part is a set of clear instructions and any wishes regarding your literary estate for the people you’re leaving in charge. My lawyer has read and suggested language for this secondary document, which I will sign and store in the same envelope as my Will and POAs.

This document:

• Names my desired executors and beneficiaries, and outlines that I’d like the money placed into education trusts for my niblings, with any ‘extra’ to be donated to a list or organizations that had provided me with grants and bursaries in the past, and the remaining to be split equitably between my living family.
• Explains what copyright is and how long it lasts.
• Explains how and why I’m requesting my executors to retain my archives, and a list of places they can reach out to for donation if they don’t want to retain it. (Later in my life, when I’m in my senior years, I will start the work of reaching out to places myself to take this task off their plates. It’s only outlined in this version of the document now in the event of my sudden and unexpected death.)
• Lists all the companies, publishers, and agencies from whom I will be receiving royalty payments, and which bank accounts or money apps they funnel into.
• Lists all of the reoccurring payments I have set up for writing-related expenses, like for software, hosting sites, streaming services, etc. so they can be cancelled.
• Has a cheeky list of showrunners and directors I wholeheartedly endorse making an adaptation of my works after my passing, just in case, you know… the right someone asks. 😉
• Includes a copy of my signed agency agreement. When you sign your contract with your own agency, make sure the agreement includes a clause that gives your agency permission to manage your estate after your death.

And that’s it!

It’s a lot of information to digest, and a lot of decisions to make, but your loved ones will appreciate your thoroughness when the (god-willing, far-off) time comes. And you can rest easy knowing that you’ve protected all of your hard work, and ensured that the people you care most about will be the ones who benefit from it in the coming generations.

A Final Note

I am not a lawyer; this article is not professional legal advice. It is simply an outline of everything I’ve had to organize and consider, on the advice of my lawyer, to prepare my final personal estate documents. I’m sharing it in the hopes that it will be a good first step for you. The lawyer you hire will, of course, be able to provide you with personalized and considered legal guidance.

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Still have questions? Read more WORDS FOR WRITERS posts here or ASK ME HERE.