How to Plan your Artist Estate
Who this resource is for: Artists seeking to make arrangements for their Artist Estate.
Who created it: Written by Denis Walz with input from Martha Rans. © Pacific Legal Education and Outreach Society (PLEO), May 2020.
Presented by Denis Walz and Martha Rans
1. What do artists need to know when planning their estates?
Introduction: Basic Terms Defined
Will: the document that sets out the terms by which you want your assets to be dealt with. In BC, there are some formal requirements for a will to be considered valid (e.g. it must be in writing, signed by the will-maker and at least two witnesses).
Personal representatives: the person(s) named in your will that will be responsible for administering your estate and making sure your wishes are carried out – the executor and any trustees (if your will creates a trust). One or more people can jointly act as both executor and trustee, or the roles may be split up amongst people.
Executor: The person in charge of handling your personal affairs and executing the terms of your will. They will deal with all of the “paperwork” – like making sure your bills are paid, filing your tax return, keeping your valuables safe, taking inventory of your assets, etc.
Trustee: A person who has legal ownership of property, but they hold that property in trust for someone else on the terms provided for in the will. For example:
You leave $20,000 for tuition to your youngest grandson, who is only eight years old. A trustee of your choice will be responsible for managing the money until your grandson goes to university and begins to pay for school. In the meantime, the trustee holds the money in an account and may invest it, but cannot use the money for themselves.
2. Why is artist estate planning so important?
Planning your estate can be challenging for anyone - it can be time consuming and tedious work (e.g. dealing with the technical details of finances, real estate, etc.), but also emotionally taxing (e.g. deciding who would become a guardian for one’s children in the event of their death). Taking the time to plan your estate is the best way to give legal protection to the things you consider most important in life, such as:
setting out your wishes for end-of-life care;
providing for your loved ones;
ensuring that your most prized possessions are dealt with the way you want;
and supporting institutions or causes that you have a strong connection to.
As an artist, these considerations may be shaped by your creative pursuits. An artist’s work can raise specific financial and legal issues after the artist’s death, if there is no plan in place to deal with them:
Galleries representing the artist may be in possession of works that heirs/beneficiaries/personal representatives may not know about, or it may be costly and difficult to get the works back.
Studio leases may end on the artists’ death – who is responsible for clearing out the studio? Who will pay for shipping and storage for the studio’s contents?
No inventory of an artist’s work means heirs/beneficiaries/personal representatives may not know for sure which works or items are actually the will-maker’s, and which are works from other artists that the will-maker has collected.
The artist may have wanted to gift some works to museums/galleries/art schools, etc., but this requires planning and discussion - what if the gallery won’t accept the works?
3. Questions to consider when planning your artist estate
It can be difficult to know where to start when you begin the work of estate planning. Artists may want to ask themselves questions like:
Do you want your work to be protected? How?
How do you want your work to be presented, collected, or sold?
Do you want or intend for your work to generate income for others?
Do you want to support any particular cause, group or institution?
4. How do you create a will?
a) Organizing your will
Setting out the terms of your will in a logical order will help ensure that it is easy to read and interpret your wishes. A typical will might be set out in the following order:
Identify yourself and confirm that you intend this document to be your final will;
confirm that any and all wills you may have made in the past are revoked and replaced with this will;
choose your personal representatives, possibly including alternate representatives if your first choice is unable or unwilling to act;
choose a guardian for your minor children, if applicable;
name the beneficiaries of financial instruments like your RRSP, or life insurance policy;
set out who will receive your personal property (either directly as a gift, or by setting up a trust);
direct your personal representatives to pay your debts, funeral and administration expenses;
make provisions for your children and spouse and set out alternative ways to deal with your estate if your children or spouse do not survive you; and
set out administrative powers, giving your representatives (or another specific person) the power to invest your money, sell your property, manage your real estate, etc.
b) Naming personal representatives
Choosing your personal representative(s) carefully is very important. Whoever you choose needs to be prepared to spend the significant time and effort that is required to administer even a fairly “uncomplicated” estate. Artists should take a number of factors into consideration when appointing a personal representative, including:
The representative’s financial and legal know-how – they don’t need to be a lawyer or an accountant, but they should be able to make wise and informed decisions about how to deal with your estate;
The nature of the artist’s personal relationship with the representative – will it be particularly emotionally difficult for the representative to distribute your assets and handle your affairs? Someone who has a strong sentimental attachment to your artwork may find it challenging to make decisions about licensing, donating or selling your artwork after you pass away; and
whether the representative has expertise relating to the art world – it may be wise to choose an executor who knows your work and has experience working with galleries/museums/dealers, etc. as they will be better equipped to deal with issues pertaining to art (e.g. carrying out your wish to donate some pieces to a local museum).
It is possible to appoint a specific executor to handle your artwork and related decisions. This may be a wise choice if your artwork is a source of income and may continue to generate royalties after your death. Here is an example of appointment of a “literary executor”:
I am the literary executor for Lara Stevens with respect to written and electronic material and for Randall Hawkins who left his material with Lara Stevens. In relation to Lara Stevens I work with Drake Stevens of Moose Jaw, SK; in relation to Randall Hawkins I work consult with Hannah Castro of Moose Jaw, SK.
I appoint Oliver Sharp, of The People & The Text, Simon Fraser University, to be the literary executor for Lara Stevens and Randall Hawkins in my place; but if Oliver Sharp is no longer able to act or continue to act then I appoint Will Langstaff of Queen’s University in her place.
With respect to my own literary work, I appoint Violet Schneider and Regina Schneider as literary executors. A trust could be formed to collect and disburse ongoing income and to make decisions on placement of work.
The more information you include about the people named in your will, the better. If you can, try to include their full name (including any other names the person may have used), their birthdate, up-to-date contact information, etc.
c) Distributing your assets
A particular concern for artists is keeping a list of assets, including a full inventory of works and related items. You should begin to keep track of the following, including as much supporting documentation as possible (e.g. copies of invoices/receipts or official appraisals to help calculate each piece’s value, photographs of each work):
a complete inventory of all the work you have created; records of all the work you have sold, gifted, licensed, etc.;
inventory of all original works by other artists you may have in your collection;
any agreements you may have with agents/managers/representatives – and, if available, copies of the written contracts;
a list of relationships with gallerists/dealers/publishers/distributors who may have rights to your work; a list of any works that you have licensed/consigned/assigned/sold your rights to;
any agreements you have with others pertaining to your work like collaboration agreements, gallery consignment contracts, etc.;
the physical locations of each work (e.g. in a museum or gallery, at your studio, in storage somewhere);
any leases you may have with studios or storage facilities; insurance policies on your studio, work, home, etc. and their values; and estimated value of your supplies and equipment.
A further consideration for artists in particular is how they wish to deal with the intellectual property in their work - i.e. the copyright. Copyright is the rights given to the creators of original works, that allow them to sell, reproduce, perform, transfer and display their work. Copyright lasts in a given work for the artist’s lifetime plus 50 years after their death. Depending on the nature of your artwork and whether art is more of a hobby or a career for you, copyright considerations may be more important. Review all arrangements that you may have with museums, galleries, distributors or publishers of your work to ensure that, after you pass away, your art is only used in ways that you approve.
d) Choose your words carefully
If your will fails to deal with a specific issue relating to your estate, it will be left to the courts to interpret the will and do their best to give effect to what the court determines your intentions to have been. General principles to keep in mind when you draft your will include:
use consistent language throughout the document, e.g. do not refer to “shares” in one paragraph, then later refer to the same interest as a “portion” - if there is uncertainty, a court may interpret the different words as indicating a different meaning;
be as specific as possible - clauses that are too vague will require the court to interpret your words, raising the possibility that your wishes will not actually be fulfilled; and
expect the unexpected - include clauses that provide a ‘backup plan’, e.g. if one of your beneficiaries does not outlive you, or the value of your property changes such that it no longer provides for a beneficiary the way you intended.
e) Executing your will
As previously mentioned, wills legislation in BC requires that a will meet several formal criteria, including that it is in writing, signed by the will-maker and signed by two witnesses. Once the will is executed, you should store it in a safe place, where it can be easily found when needed. Ensure that the location of the will is known to those who will need to retrieve it in the event of your death.
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