BAD NEWS ABOUT YOUR AGENT'S DEATH

Discussing the Undiscussible

AS THE ACCUMULATION of publishing horror stories saps what is left of my life force, I have recently become reflective about the end of life, and that in turn prompts me to write about the problems writers face when their agents die. I have, of course, written about terminating your relationship with your agent, but that was predicated on their still breathing. My omission is forgivable. Nobody likes to think about death, especially agents. Writers at least have an opportunity to immortalize themselves through their books. But what do agents have to be remembered by—their deals? Somehow the tribute "He Negotiated the Sweetest Option Clause in the Business" doesn't have the lilt guaranteed to inspire pilgrimages to my grave.

In fact, survivors and former clients might be inspired to shake their fists over their poor agent's moldering remains if he or she made inadequate provisions for the continued operation of their business in the event of their death or incapacity. Among the prizes of my horror story collection are those about authors whose money was tied up for years while their late agent's estate underwent probate.

These disturbing tales vividly point up the need for agents, while they are still vital and compos mentis (if anyone electing to become an agent may be said to be compos mentis), to determine exactly how their estate administrators, partners or employees will handle their business, especially cash flowing in and out of their agency after they have expired. For, despite the remark by one publisher that the only good agent is a dead agent, the worst living agent is better than the best dead one if the latter's passing creates untold tzuris for their clients.

So, let's look death squarely in the eye and utter the unutterable: sooner or later your agent, like everybody else, has got to meet their maker. Despite the image of invulnerability that agents project in order to intimidate publishers and reassure clients, actuarial statistics indicate that their track record in escaping the Grim Reaper (to say nothing of crazed taxi drivers) is no better than anybody else's. And while autopsies do reveal some physiological characteristics unique to literary agents, such as overdeveloped spleens, ossified hearts, jaded palates, and a circulatory system of iced water, there are no indications of divine creation. This means that they are fallible just like you, and like you they don't pay as much heed as they should to the practical consequences of their mortality. But as those consequences may be to drive you to the poorhouse, it's best for you to raise questions while your agent is in an upright position to answer them. If you choose to avoid the subject, you may be casting yourself to the treacherous winds of probate law.

Probate 101

Let's talk about that law.

Every state has a system for probating estates, and although the laws differ from state to state, the process governs the evaluation and distribution of the deceased’s assets. An executor or administrator will conduct an inventory of the estate, review the late departed’s will and other pertinent documents, arrange for settlement of debts and other claims on the estate, and manage or supervise management of financial responsibilities.

First, the Good News

If the agency was incorporated you can breathe a sigh of relief. Among the many reasons corporations exist is to furnish uninterrupted operation of the firm should the owner die or be incapacitated. The corporation is a business entity with a life of its own. Even if the corporation consists of just one owner/shareholder, the company usually survives his or her death. The corporate bylaws and minutes usually provide for the administration of the firm by other shareholders or by individuals designated in the will. The stock in the company is part of the estate, but it’s hard for the fiduciary function of the corporation to be completely paralyzed. Of course, if it was a one-person operation there may be delay while things are being sorted out, whereas in a larger company there are usually other employees or partners familiar with the agency’s operation who can fill the breach and provide immediate continuity. But whether the corporation is great or tiny, corporate law generally allows the firm to carry on while the estate is being settled. (I can’t speak confidently about LLCs - Limited Liability Companies -as they are more complex.)

Where There’s No Will There’ No Way

If however your agent died intestate – that is, left no will at all - well, it’s not a pretty sight. A public administrator will be appointed by the state to sift through the agent’s business affairs. In all likelihood the accounts will be frozen. Whatever is in the bank will stay in the bank, and whatever funds come into it – such as your urgently needed advances or royalties - will go undisbursed while the estate is probated. Do you see a nightmare scenario shaping up? Wait, it gets worse.

You have a bright idea: You’ll go to your publisher and ask them to pay you your share while the estate is being probated.

So, you or your lawyer pay a visit to your publishers. You talk about your late agent. "Terrible thing," you say, clucking your tongue.

"Terrible," your publisher replies clucklessly.

Now you get down to business. "You know, royalty time is coming and you guys are going to owe me money. Those accursed lawyers for the estate are giving me a hard time about probate. So how about you paying the royalties directly to me? You can pay the commission to the agency, but the balance should go to me. Any problem with that?"

Your publisher's eyes are all sympathy, but their palms are turned up in a gesture of helplessness. "It's not that easy. We've referred the matter to Legal, and you know how Legal is."

"No," you reply through clenched teeth. "How is Legal?"

"Uh, very literal," says your publisher.

What your publisher means is that in the absence of clear-cut legal instructions, Legal can and will do nothing. And there's a lot about your agent's death that is not clear-cut. Did you have an agreement spelling out commissions? How can anyone be sure your agent didn't advance money to you or incur some recoverable expenses on your behalf? About the only things that are clear-cut are the contracts your agent negotiated with your publishers irrevocably requiring them to pay all your money to your agents. Your publisher cannot take the risk that the estate will sue the publisher for paying money to you that rightfully belonged to your agents. The only thing Legal can do is point you to the bathroom so you don't whoops all over House Counsel’s carpet.

Don’t Be Embarrassed to Ask

It is therefore a good idea for you to inquire what if any provisions your agent has made for the operation or sale of their company in the event of their death or disability and whether their employees, partners or heirs are sufficiently familiar with the business to administer it after he or she is gone. It may be that they have given the matter some thought and decided on (or, better yet, formally provided for) a prudent course of action. It's certainly worth exploring, given the grim alternative.

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A version of this article was originally published in Locus Magazine and reprinted in Mastering the Business of Writing.

Richard Curtis’s books on publishing are available at Open Road https://openroadmedia.com/search-results/books/Richard%20Curtis