Lifecycle of the Literary Estate: Administering a deceased estate with, or as, a literary executor

Have you been appointed as the executor of an estate – but there is another person appointed as “literary executor”?

Are you appointed as literary executor under a will and want to know what to do?

How do you deal with your family member or friends best-selling novel now that they have passed?

 

Probate law deals with property. Most people accept that will cover real estate, money, shares, investments of various kinds, even superannuation in the right circumstances. What about the fruits of your creative labours in your lifetime – artistic works, a best-selling novel, sculptures, letters between you and your muse? Often, the creator of the works wants to see their work promoted and their legacy maintained after their death – but wants to exert control about how that is done, who can exploit their works for profit and who shares in the profits that flow.

This is the second part of a three-part series looking at the concept of “literary executors” – in this part we examine what it means to act as, or with, a literary executor. The ‘Lifecycle of the Literary Estate: Planning for and appointing a literary executor‘ looked at appointing a literary executor under your will. In the final part we will look at what kinds of issues and disputes can arise.

 

How do you take up the appointment?

The appointment of a literary executor requires that the person appointed be recognised by the Court. In an ordinary estate, the usual course is that the will of the deceased person is submitted to the Court, along with other required papers, for a grant of Probate to issue. This is the official and legal recognition by the Court that the executor has the power to administer the estate.

The effect of appointing a literary executor (at least when prepared correctly) is to divide that role into two separate parts. Therefore, as literary executor you must also be granted a separate power by the Court to deal with the specific property the subject of your appointment.

The power of the literary executor is always “subject to” the appointment of the ‘ordinary’ executor – and it goes the other way too, as the ‘ordinary’ executor’s power is limited to all property except what is under the control of the literary executor.

 

What does it cover?

The first question when examining the appointment of a literary executor is what is the scope of the role – what are the creative works, or endeavours that are being captured by the appointment.

This, naturally, relies upon the precision and care with which the original clause was drafted – and also the extent to which the deceased has left the works in a state to be discovered or recovered.

It may be that in order to determine what is within the responsibility of the ‘ordinary executor’ and the literary executor that an application to the Court must be made – not just for Probate, but for a binding determination of the meaning and interpretation of the clause making the appointment.

 

Access to the materials

In times past, a persons literary estate might have been restricted to physical files in order to take control of the estate – personal papers, drafts, working copies, published books and the like. These days many creative works exist only in digital form – for example, the drafts of the novel or the various original voice memos of recordings on a phone that became a hit song.

The property of the literary executor may be limited only to the works themselves, and not the device in which they are stored, or the account on a cloud storage service in which they remain. Therefore, it is important that access be given to the literary executor to retrieve or access the works that their responsibility covers.

Again, in the absence of cooperation by the ‘ordinary executor’ or the cooperation of the holder of the property, it may be necessary to seek the direction, advice or compulsive power of the Court. The interaction between the different types of executors, and of service providers, will likely only increase in complexity as technology continues to advance.

 

What to do next?

Literary estates can be a complex affair and we encourage anyone who is appointed as a literary executor – or even just as ‘regular’ executor of an estate that includes creative endeavours – to get in touch with our expert solicitors to discuss the situation further so that it can be dealt with correctly and efficiently from the outset.

 

For expert legal representation in estate litigation, contact our team today.