Will you? Or Will you Not?

Our #PubLaw series on estate planning continues today with a brief discussion of wills.

As we mentioned last week, authors who have no written estate plan will find their estates (and their copyrighted works) subjected to the laws of the state (or country) where the author resided at the time of his or her death. Generally speaking, the government is not the best candidate to design your estate plan.

Which means you need to do it yourself.

In most states (and countries), the estate planning choices are wills and trusts. (We’ll look trusts next week.)

A will (or a “testament”) is a writing which disposes of property belonging to the testator (the person who wrote the will) at the time of his or her death.

In most places, if the testator’s estate equals or exceeds $100,000 in value, the will must be administered through a probate proceeding.

In probate, the will is administered, and the decedent’s property distributed, by a court or by a court-appointed executor (with or without direct judicial supervision). Probate doesn’t require an attorney, but in most U.S. probates the executor does hire legal counsel. Probate lawyers’ fees are generally set by statute (often on a sliding scale, and usually measured as a percentage of the estate).

Authors with small estates (less than $100,000 cash value at the time of death) may find a will sufficient for their needs. A will can contain specific language stating how copyrights and creative works should be distributed, and to whom, and how the author would like them managed after death.¬†(We’ll talk about these options in coming weeks.)

At a minimum, an author needs a handwritten will (also called a “holographic” will) and also a list of copyrights, publishers, and similar information the author’s heirs can use to collect and manage the author’s creative works after his or her death. Published authors should seriously consider paying for a professionally drafted will (or trust) to ensure the estate plan properly transfers copyrights and creative works as intended.

Authors whose estates exceed $100,000 should consider a trust, a document which offers more flexibility than a will – and may avoid probate altogether. But that’s the topic of next week’s #PubLaw post.

Have questions about authors’ wills? Feel free to ask them in the comments!

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