Creative types need to work on that will

Scene in The Girl With The Dragon Tattoo, from the novel by Steig Larsson, who died without a will. Picture: Nordisk Film/The Kobal Collection

MANY celebrated musicians, actors and TV stars have died recently and it’s always interesting to find out whether they left a will and who’s going to inherit their, often very sizeable, estates. The estate administration might be complex with several properties, high value investment portfolios and business interests to sort out, often with an international element involving assets located in various different jurisdictions, and possibly several ex-spouses, cohabitants and children. And then there are the ongoing copyrights and other intellectual property rights which could be worth a significant amount.

It’s not just big stars who might have to contend with such complexities – the ease with which writing, music, films, photographs, design, blogs and vlogs can be published now means more clients may have to consider what’s going to happen with copyrights that they own on their death. Even if this is not generating a large income, it could be that there’s someone who the author would trust to have control of their works.

Copyright exists for a long time – 70 years after the end of the year in which the author dies for literary, dramatic, musical or artistic works, 50 years for sound recordings; for films it is 70 years and depends on who is the last to die of the principal director, the screenplay author, the dialogue author and the composer of music written for and used in the film. This longevity can cause headaches in itself. If royalties received are modest and diminishing over time, the cost of ongoing administration can outweigh the benefit, even more so if the royalties are being divided amongst several beneficiaries.

On a practical level, this means that estate administration files are kept open for a long time, with executors still under a duty to fulfil their obligations. It may be that there is a mix of published and unpublished works, and it’s worth thinking about appointing specific ‘literary executors’ who would be authorised to take possession of works, enter into negotiations and contracts for publication, or, indeed, contract with other authors to finish any incomplete works. Make sure that the will clearly specifies who is to receive the profits, whether these are to go to a specific person or into a trust.

Copyrights can be dealt with as specific legacies in your will and it’s important to make sure that everything is included – either by carefully listing all the copyrights that the legacy covers or by drafting it very broadly so as to cover everything. Make sure that any other legacies in the will do not have unintended consequences. If there is a general legacy including personal possessions, think about what that might include. Personal computers, laptops, tablets and smartphones might all contain copyright works, so be careful when drafting a will that the copyrights are separated from the physical possessions if need be.

The battle over Steig Larsson’s estate is a case in point – he died without a will and, allegedly, with his much anticipated fourth and fifth novels in ‘The Girl With…’ series saved on the hard drive of his laptop. The laptop was in the possession of his cohabitant, who had no other rights to his estate according to Swedish law, and there followed many fraught negotiations between his cohabitant and his father and brother who inherited the rest of his estate.

For estates in Scotland we always have to think about the interplay of legal rights with inheritances, even if there is a will in place. Copyrights are moveable assets so are within the scope of legal rights claims, and if this does come into play the valuations involved will be crucial.

Given that copyright exists for such a long time, anyone who inherits  copyrights should update their own will. It will be prudent for them to consider appointing literary executors and think about what is to happen with their inherited rights on their own death.

If there’s no will, copyrights transfer according to the laws of intestacy and whoever inherits the works will also inherit the copyrights. This could lead to some ‘interesting’ family discussions as to how the estate is distributed and who gets which asset or whether everything is sold. As ever, the best way to be sure that the people you want to benefit from your estate actually do benefit is to have a properly thought through, well drafted and validly signed will in place.

• Catriona Torrance is a Solicitor with Balfour+Manson