20 October 2008

Mistaken Federalism (Part VI — the End)

Andre Norton's estate will continue to provide amusement for those of us with particularly eclectic (and sick) senses of humor for quite some time. The situation includes a catalog of "don't do this with your own estate!" problems.

  • If you have a business entity set up to handle your intellectual property, don't refer to its possessions in your will! Ms Norton did, but it wasn't set up properly or managed properly; this entire brouhaha could have been avoided by using her holding corporation correctly, and in fact it would have been vastly easier to set up partial distributions from corporate assets.
  • If you do not have a business entity set up to handle your intellectual property, ensure that your lawyer uses the correct terms of art (and includes specific definitions in the will itself, if there are terms unique to your kind of intellectual property interests — in this instance, a definition of "royalties" would have been useful). In turn, that means that a "general practice" attorney, or even one who specializes in trusts and estates, must consult with an intellectual property attorney who understands the substance of what is at issue, not just the trusts-and-estates-imposed procedure.
  • If there is a challenge to your will (or you are challenging a will or intestacy proceeding for someone who died without a will), make sure that the challenge is being heard in the right court. Again, this refers back to the specialization of attorneys problem; as the client, though, you are entitled to make your lawyer explain why you are in a particular court.

But all of that pales next to the need to have a will in the first place. It is absolutely essential, and not just for older authors/composers/artists: You could be hit by a falling meteorite at any time. With a will, at least there's something to fight over; without it, there is no legal indication of what you wanted done. And keep it up to date; if you have children, or own real property of any kind, or jointly own any intellectual property, your will should be reviewed at least every three years.

If you jointly own intellectual property with anyone else — either as the creator, an inheritor, or whatever — you should ensure that your coowner(s) know both the location of your will and who you have designated as executor. Some deaths are more untimely than others; if there is a time-critical negotiation for rights in that IP going on at the moment of death, it's essential to know who can conclude the negotiations.

Finally, you should give some thought to giving special instructions to your executor regarding the intellectual property, or even appointing a literary executor whose only duties are to handle the intellectual property. This can be extremely important; it's definitely something to discuss with the attorney who is creating your estate plan. Not every estate plan needs an attorney, but if any of this six-part essay is not crystal-clear and potentially applies to you, yours probably does. Too often, the expense of going to a lawyer for good preventive law — like a good estate plan that actually covers all of the issues — is treated as excessive. Instead, it's like changing your oil filter; one must wonder how badly depleted and/or damaged Andre Norton's literary estate will be after what has already been three years of litigation (and, as I've noted above, it's not done yet!).