So. A writer friend asks you to be their literary executor. You’re not exactly sure what a literary executor does, but you know you should feel honoured: after all, your friend has just asked you to look after some of their most cherished possessions – their creative works – after they have died.
How complicated can it be? you wonder.
How can you refuse? you ask yourself.
You are now well positioned to make a very big mistake.
This article is going to explain why you should consider your friend’s request very seriously before you say “Yes.” It’s also going to give you enough information to decide whether you need to find a literary executor for yourself. It is not intended to offer legal advice but rather to let you know when you might need legal advice – in order to save yourself (or someone close to you) a lot of potential aggravation and wasted time.
Executors and Literary Executors
As most people know, an executor is an individual (or company) that you name in your will to manage and dispose of your estate when you die. (If you do not have a will, provincial legislation determines how your estate will be divided.) The responsibilities of your executor may include – among other things – making a list of all of your debts and assets; having those assets evaluated for tax purposes; locating beneficiaries; advising your banks, the government, insurance companies, and other institutions of your death; paying money owed by your estate; having the will probated, if necessary; distributing any remaining assets to your beneficiaries; filing a final tax return; etc. It is an onerous job, as anyone knows who has done it, but barring battles among beneficiaries, it can normally be concluded within a year or two.
A literary executor is an individual (or company) that a writer names to manage all issues relating to the written (or other creative) works that form a part of their estate. Literary executors are normally chosen on the basis of their familiarity with the writing and publishing world as well as the literary mind-set of the writer of the will: in other words, they have specific knowledge that most general executors don’t have.
Such assets as your home, your investments, and your mint-condition Star Wars figurines are known in the law as “real property,” while your written works (and any other creative assets to which you hold copyright) are called your “intellectual property.” As a writer, your intellectual property includes everything you have written during your lifetime to which you retain copyright – including published and unpublished works. These may range from poems to plays to short stories to essays to diaries to blog posts to novels to non-fiction works to letters to your lover, and on and on and on.
Generally speaking, your general executor manages your real property, while a literary executor manages your intellectual property. If you don’t appoint a literary executor, your general executor will be responsible for managing and disposing of the entire estate, including your intellectual property.
Most executors, knowing nothing about literary matters, will consider it too much hassle to do anything with your literary works and will simply let them languish. Unless you are earning a significant amount from your writing, this may be the sanest route for them to take. But then again, maybe not. Copyright in Canada lasts for 50 years. What if someone comes along forty years from now and wants to turn your first novel into a movie? Who will do the negotiating then?
What A Literary Executor Does
Your literary executor will need to take such actions as the following:
- find all of your copyright works (including published and unpublished works) and have them evaluated for tax purposes;
- figure out who pays/owes you royalties and what paperwork needs to be completed so the royalty flow continues;
- destroy any documents that you have requested that they destroy (or make that kind of decision themselves);
- investigate whether any library or university is willing accept your papers in exchange for money or tax receipts (unlikely, unless you are very well known) – and if not, decide how to dispose of those papers;
- advise agencies like the Public Lending Right Commission, Access Copyright, writers’ organizations, etc. of your death;
- create financial reports showing income and disbursements relating to the creative works in the estate.
The literary executor will typically have the right to make decisions regarding all aspects of the literary works you have created, deciding, for example:
- whether your unfinished novel should be completed by someone else and then submitted for publication;
- whether a contract with a publisher should be renewed;
- whether your out-of-print books should be republished;
- whether your blog posts should be published as books;
- whether to take down all the books you are selling online;
- whether to grant permission to an editor who wants to publish one of your poems in an anthology.
All proceeds that accrue to the estate as a result of the management of your intellectual property – after the taxes, expenses, and literary executor have been paid – will go to your beneficiaries, as set out in the will.
Think Twice before You Say “Yes”
As the lists above suggest, people who agree to serve as literary executors for their writer friends should expect to invest untold hours – often not only for months, but for years – to complete the winding down of a literary estate to the point where it can be managed by the beneficiaries.
Before you agree to be someone’s literary executor, interview that person closely about what they are asking you do to. Find out how you will locate all of the contents of their literary estate, including both published and unpublished works. Get them to put their specific directions to you down in writing, so that you can show them to the beneficiaries if necessary: it can be very hard to explain to a grieving spouse that the newly deceased’s draft novel isn’t worth completing, and that the author wouldn’t have wanted you to bother anyway, or to explain that the estate really needs to hire a professional editor to complete the work that is required.
Before you accept the offer to serve as a literary executor, think about how much of your own writing time you will need to give up in order to comply with the request. It might be in your best interests to tell that person that you have sought some kind of (legal, medical, psychological, spiritual) advice, and been advised against accommodating their request.
The Racehorse Analogy
In preparing this article, I consulted with Edward Olkovich, a Toronto estate lawyer and an Ontario Certified Specialist in Estates and Trusts Law, who has spoken and written widely on the subject of wills and estates. (He can be found online at mrwills.com) Among the helpful guidance he provided me was the following analogy.
Edward Olkovich said, “Imagine that someone has recently purchased a young thoroughbred that has not yet run a race, but has extraordinary potential. The owner dies, and the executors – who know nothing about racehorses – say to the beneficiaries, ‘Do you know how much it is going to cost to feed and take care of this horse? And to find someone to train it? Do you know how much time and trouble this is going to be?’ The beneficiaries agree. The horse is sold, the taxes are paid on the income from the sale, and the estate is concluded.”
Mr. Olkovich then pointed out what might have happened instead if the racehorse owner had named a “racehorse executor” – someone who knew all about the business of horse racing and was an excellent manager – and charged that person with taking care of all aspects of the estate that related to the horse. The racehorse owner would also have been wise to have earmarked an amount of money that the racehorse executor could use to do all the things that were necessary to allow the horse to realize its potential. The horse’s future winnings (and maybe even stud fees, in the long term) would then ultimately have flowed to the estate, and thereby to the beneficiaries.
The Money Issue
Mr. Olkovich and I agreed that no one in their right mind – especially not those who knew how much work would be involved – would be willing to take on such a challenging and time-consuming task unless they were being paid. Not even if they really liked the owner of the horse and really believed in the horse’s future.
Mr. Oklovich explained to me that most professional executors charge five percent of the value of the estate to carry out the work. Then he said, “But what if you offered that racehorse executor 25 percent of the winnings?”
A light went on in my head (as I’m sure it just has in yours). If the racehorse executor stands to earn a significant amount of money from that racehorse, they will be highly motivated to do everything possible to ensure that the horse succeeds.
Do You Need a Literary Executor?
The racehorse analogy should help you decide whether you need a literary executor or not. If your written works are likely (a key word here) to bring significant benefits over the short and/or long term to both your literary executor and your beneficiaries, you should find a lawyer who knows something about how to set up a literary executorship or literary trusteeship in your will (this is not an easy task, as it involves copyright – a federal law – as well as estate law, which is provincial. The lawyer will be your first expense).
If you do need a literary executor, it is imperative that you ask the person you’ve chosen as far in advance as possible – i.e., while you are still hale and hearty enough to take “No” for an answer, and while the person you’ve asked is still able to say “No” without being crushed by guilt. Before you ask a fellow writer, consider the burden you are about to place on that person’s time at some point in the future, and think about whether all that work is going to be worth it to your beneficiaries. If it is, decide how you can adequately reimburse the person who is going to do the work – or even motivate them to do it exceptionally well.
If you do not need a literary executor, you should still consider what you are going to do about your books and blogs and other creative output. You own the copyright to all that material, and unless you legally entrust those rights to others in advance, the copyright is going to flow to your estate at the time of your death – and stay there for fifty years. Keep in mind that if you die without a will, and there are no obvious beneficiaries, any proceeds from your estate will go to the government.
It seems wise at least to think rationally about whether your literary estate can best be compared to an up-and-coming thoroughbred or a lame and aging hack (no offence), and then to share your expectations for your intellectual assets’ future with your beneficiaries before you hit the finish line.