For those who want a hand in how their writing is handled posthumously, preparation is essential. Building on Jennifer Roland’s steps for securing your digital assets in the January 2018 issue of Writer’s Digest, Richard D. Bank advises how to manage your writing estate in your will.
BY RICHARD D. BANK
How can I make sure my writerly wishes will be honored upon disability or death?
Would Harper Lee, if she’d been consulted prior to being disabled by a stroke, who once declared she would never publish another book, have wanted her “found” manuscript Go Set a Watchman to hit bookstores? What would Jack Kerouac have thought about his literary estate falling into the hands of his estranged wife’s siblings? And what about Franz Kafka, who had instructed his friend Max Brod to destroy his manuscripts—would he have been pleased to see them posthumously published?
Authors without the literary renown of Lee, Kerouac and Kafka are equally deserving of having their writerly wishes honored after their death or incapacitation. But unless you have taken the legal steps necessary, there is no guarantee your intentions will be respected. You may not care what happens to your work after you are gone. But if you do, you have options to see your intentions are followed.
Including a Creative Property Clause in Your Will and Living Will
Unless you have a specific directive in your Will, all of your unpublished work will be disposed of in the same manner as your other assets similarly lacking explicit instructions (the “residue” of your estate). To avoid this, a paragraph must be inserted providing that your “Writings” not be included in the residue and instead be distributed as you instruct, which often involves the creation of a “Creative Property Trust” under the supervision of named trustees.
The same provision can be made in your Living Will, sometimes called a Durable Power of Attorney, where you have appointed someone to handle your affairs and/ or make medical decisions should you become disabled or incompetent.
Deciding Whether to Do It Yourself or Retain an Attorney
There are numerous sites where you can download forms for Wills and Living Wills, and several sites provide specific language for a Creative Property Trust, but you need to be certain the document complies with the laws of your state. I advise that you seek the services of an attorney who is familiar with intellectual property law as well as estate law. There is no reason you should have to pay more than a modest fee for the service (make sure to determine in advance what it will cost).
Or, of course, you could just burn your manuscripts—something that Kafka might have considered.
Richard D. Bank is an attorney and professor in the graduate school at Rosemont College teaching publishing law and creative nonfiction. He is the author of seven books, a freelance writer and a writer’s coach.