MORTALITY

Your Work May Be Immortal, But You? Not So Much

ANY AGENT WHO HAS LIVED LONG ENOUGH has received a call or email that begins, “I have sad news. . .” or, “I regret to inform you. . .” or, simply, “Are you sitting down?” From bitter experience we know that the next words will announce an author’s death. My wife, when she intercepts such a bulletin, will call out my name in a tone unlike any other she uses to address me, and I know at once she is preparing me for a blow that will leave me sick at heart.

It is virtually impossible for an agent to work with authors for any length of time without forging strong bonds of friendship if not love. Inevitably we are drawn into their personal lives, habits, passions, joys, anxieties, terrors and hangups. Sometimes they will confide intimate secrets in us that they have shared with no one else. Willy-nilly we become their diagnosticians and psychologists, rabbis and confessors. We monitor their physical and mental health, knowing how inextricably entwined these are with the quality of their work.. Sometimes we are their punching bags but we try not to take it personally, because we understand where their pain is coming from. We are their lifelines. We are their partners. We are their family.

And then, one day, they are gone.

They are gone, but their work remains, and now our client is their estate. We have the same fiduciary responsibilities and are obligated to conduct their business with the same zeal and commitment that we did when the author was alive. In many cases the transition is seamless, for we are already a known and trusted factor with the author’s spouse and children. In others the family has not been privy to the author’s business affairs, and we have to introduce ourselves afresh and gain their confidence, for in their eyes we are strangers handling their money, and it is natural for them to be cautious and suspicious. We may also have to deal with lawyers and accountants scrutinizing our actions.

As soon as is appropriate, we will reach out to the partner or next of kin and address a host of practical questions. At the top of the list, of course, is “What happens to the money?” There is a long answer to this short question, but the essence of it is this: unless provisions have been made to the contrary, the late author’s account will be frozen at death while his or her will is being probated, a process that can take many months or even years, during which the survivors can be deprived of vital funds.

“Probate,” as one financial website explains, “is a legal process that administers the distribution of a deceased person’s assets. The process is overseen by a probate court, which has the legal authority to decide matters related to wills and estates.” The court appoints an executor, authenticates the deceased’s will, verifies the assets and debts, and settles distribution of the balance to heirs and beneficiaries. Even if the author died without a will, probate investigation is required.

Let’s linger for a few moments on that phrase “unless provisions have been made to the contrary.” Like the rest of humanity, some authors prepare for their demise and some don’t. Although literary agents are not professional money managers, we have an unwritten mandate to urge clients to think ahead and prepare to meet their maker, even if they are young, for who knows but there isn’t a meteorite or berserk semi with their name on it hurtling in their direction?

At the very least this means writing a will, but there are numerous other estate planning strategies that authors may take advantage of. The key is to arrange your affairs so that your survivors have access to funds outside of the probate process, funds that will sustain them until the court completes its diligence and restores access to your money. Engaging an attorney/financial advisor is strongly advised if not vital. (The Authors Guild offers an excellent guide to estate planning for authors.) Once probate is completed, the survivors usually have to open a new bank account with a new tax ID number.

The second question is “What happens to the books?” Unless an author has expressly designated otherwise in his or her will, their literary estate (copyrights, contracts, royalties etc.) will be part of their residuary estate and passed on to survivors along with their other property and valuables. Here is where the agent comes in.

Most agencies have comprehensive contracts with their clients. Any book or performance contract negotiated by the agency will in all likelihood remain under the agency’s control. In addition, each individual book or performance agreement will have an agency clause reinforcing that control – control that in most cases is irrevocable. The publisher or producer is required to pay royalties to the agency and not directly to the author or author’s estate. The agency’s receipt of those royalties discharges the payer from obligation to the author or estate. As a fiduciary the agency must remit collected funds promptly after deducting commissions, and provide clear statements about the transactions.

A typical agency clause might look like this:

The Author hereby authorizes [Agency name and address] to act as his/her Agent and to collect and receive all sums of money payable to her/him under the terms of this Agreement. The receipt by such agency shall be full and valid discharge of the Publisher’s obligations. Such Agency is fully empowered to act on behalf of the Author in all matters arising out of this Agreement, and is hereby designated as the Author’s Agent upon whom notices regarding this Agreement may be delivered. The designation of said Agent shall survive the incapacity or death of the Author and may be terminated only upon written notice to the Publisher signed jointly by the Author (or her/his heirs, executors, administrators, successors or assignees) and by said Agent. The Author irrevocably and exclusively grants to said Agent the right to negotiate all subsidiary rights to the work not granted herein to the Publisher.

The level of the heirs’ involvement runs the spectrum from active to passive. Some were already intimately involved in the author’s creative and business affairs in the capacity of sounding board, editor, bookkeeper, and/or manager, making the transition smooth and pleasant. Others have little or no familiarity with the author’s works and business, and the agent must educate them about the value of the properties and involve them in decisions. It is to be hoped that the bond between agent and estate will be as firm as the one between agent and the departed author.

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