Estate PlanninG

A Visual Artist’s Guide to Estate Planning

As an artist, it's essential to have a plan to ensure your affairs are settled the way you want after you pass away.

An estate plan is a set of documents that allows you to choose who will make decisions for you in case you're no longer able to, who will take care of your minor children, who will wind up your affairs upon your death, and who will receive your accounts, property, and artwork.

Some options regarding what will happen to your artwork at your death include:

  • instructing your personal representative, executor, or successor trustee to sell any of your artwork in your possession at your death

  • designating specific individuals to receive it

  • having it held by a trust or foundation to be lent or licensed after your death

  • providing instructions to donate your work to a museum, university, or other organization that might benefit from it

How do I begin the process?

The first step is to catalog your artwork, including your sold pieces. Make sure to specify to whom they were sold and for how much. This information can help value artwork that has not sold and provide a list of potential buyers for when you pass away. You should also include any pieces of artwork that you have lent. This knowledge will be helpful for your loved ones to determine who has the artwork and under what circumstances it will need to be returned. Your list should also include any pieces licensed to someone else. It will be important for your loved ones to know about this income stream, which could continue after your death. Consider also including a list of pieces you have gifted to individuals or donated to charities. Be sure to include any pieces that you have kept for yourself.

After compiling a list of your artwork, it's important to determine the value of any piece that hasn't already been appraised and that's still considered yours (having been neither donated nor sold). This process can help you understand the value of everything you own (an essential step in estate planning) and determine if you have adequate insurance to cover your artwork's value. Just like other pieces of tangible personal property, your artwork can be susceptible to theft and destruction and needs to be protected.

The last step is for you to meet with us to start or review your estate planning. During this meeting, we can discuss who you'd like to put in charge of your affairs at your death and during any period in which you cannot make or communicate your own decisions. We will also discuss your wishes regarding your artistic legacy. We can discuss your fears, concerns, and objectives to craft a unique plan.

Consider your copyright

A copyright protects "original works of authorship" such as books, movies, songs, computer software, photographs, and architectural works. These works do not have to be published to be protected, but they generally have more commercial value after publication. If you own the copyright to your artwork, both the work and its copyright should be included in your estate plan. If the copyright is not specifically mentioned in your will or trust, it will transfer to your heirs by a residuary clause, which distributes all property not already addressed. As a result, one person could end up with the work and another with the copyright.

However, it's important to note that a copyright includes your right to terminate most transfers or licenses of the copyright at a future date. You cannot waive or transfer this right to someone else during your lifetime; it passes to your surviving spouse and children when you die. It includes the ability to terminate a copyright transfer to a trust. An exception to this rule is transfer of the copyright by a will, which your spouse and children cannot terminate.

We're here to help preserve your artistic legacy

We understand how overwhelming it can be to think about what to do with your prized artwork at your death and to make other important decisions about your care and the care of your loved ones. We're here to help. Call us to schedule an appointment: Santaella Legal Group, serving all of California, (925) 831-4840.