When a Writer Dies: Making Difficult Decisions About the Work Left Behind

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From Jane Friedman:

Nine days before my wife died, she forwarded me a Brevity post, The Death of a Writer, which asked:

Who is going to deal with your literary legacy, and what do you want done?

My wife wrote, “…interesting re what to do…”

She added a lifesaver emoji.

My wife, Mary Ann Hogan, journalist and teacher, died June 13, 2019, her “tango with lymphoma” ended, her life’s literary work unfinished.

Her manuscript explored her relationship with her father, William Hogan, longtime literary editor of the San Francisco Chronicle. Though he spent his life writing about books, Bill Hogan never wrote one of his own.

Mary Ann died thinking her book would redeem them both.

. . . .

My wife’s friends and writing partners agreed to help me read and judge what to save for the book or elsewhere. Then there would be drafts of the book to react to and fact-check. Her posse was more than willing. Mine, too.

We puzzled over things such as:

Should the final chapter be in my voice or hers? Both, we said. I would not pretend to be her. But I would quote her all the time, and we found those quotes.

What about the references to mental illness? She talked about panic attacks and flying thoughts, but never named the various diagnoses. What about wine? She talked about how she and her father all were big drinkers, without details. Leave it as she wrote it, we said.

What about the title? Circle Way came from the posse. Larger illustrations? That idea came from her writing mentor.

Rewrites? Mary Ann had created a lyric essay that jumped around like Kurt Vonnegut’s Slaughterhouse-Five, becoming at times a duet with her late father’s journal entries. This mosaic, we said, is best as is.

There’s more of her work to publish, in time, and now that we have a system, it can happen.

Finishing Mary Ann’s manuscript was not as hard as finding the right publisher. Parts of Circle Way had won three writing competitions. Publishers said it was “beautiful.” They also said it was “too literary” for the commercial marketplace.

My promise to my wife—to finish her book—felt shattered.

Now what?

Link to the rest at Jane Friedman

PG won’t spend much time on this, but talk to an attorney and get a will and/or a trust in place before you die or become incapacitated. Dying without a will is the most time-consuming and expensive way of passing your assets on to your heirs.

Writing a will is anything but rocket science, but if you have significant assets (more than a few hundred thousand dollars) or unusual types of property (like books you have written and self-published or books you’ve had published by any sort of publisher because whoever inherits the rights to those books will be able to collect royalties on them for the next 70 years in the US and a similarly long time in other nations recognizing copyright), the amount of money you spend to talk to an attorney and get her/his assistance will be tiny compared to the legal expenses of cleaning up an estate that hasn’t been handled properly.

8 thoughts on “When a Writer Dies: Making Difficult Decisions About the Work Left Behind”

    • Thanks. I’m moving to my “final” retirement state in about a year (I hope) and I’ve been putting this off until then. (Only want to sit my bad-news-avoidant husband down once for the planning portion…) Now I just have to keep breathing for a little while…

  1. Please, please, please have an established, fully-executed estate plan all the time. (Even if you’re planning on moving in the near future.) You could be hit by a falling piano… or (breakthrough) COVID infection.

    PG is understating matters, especially if you’ve ever collaborated on anything — with a coauthor, with an illustrator, with a composer. If any member of your family is not completely supportive (and that can include just plain embarassment), your works could disappear. Or potentially end up under the control of some doctor your collaborator has never met* (demonstrating that even after all of the lawyers and delays PG alludes to, they still won’t get it right — or even truly final, just ask the purported heirs of Anna Nicole Smith… and there are no links there because there could easily be one link for each word in this parenthetical and it’s still not over).

    I would add two additional qualifications to PG’s well-taken advice:

    (1) Ensure that whatever attorney you choose to establish your estate plan has at least a minimal familiarity with intellectual-property law, in addition to estate law. This is a communication/knowledge issue that is entirely the fault of the organized bar — these two parts of the bar just. Don’t. Talk. To. Each. Other. (The Andre Norton fiasco linked above is an excellent example on multiple levels.) And don’t expect the Copyright Office to be any assistance, either with its publications or in response to queries.

    And that goes triple if you’re doing it yourself, without an attorney’s assistance — which is actually a viable option for a portion of the “author population.”

    (2) Strongly consider — if the rest of your circumstances make it appropriate, and your output is “significant enough” — using a business entity holding company as an essential part of your estate plan and your current operations. This can vastly simplify the estate plan itself, since you can just divide the entity among heirs instead of trying to apportion copyrights (and don’t get me started on what happens when state probate courts try to deal with a challenge to apportionment of a copyright… let alone what the IRS will do).

    (3) OK, I lied. There are three main qualifications in the service of protecting authors’ interests after death…

    This is actually the most-important one, and it’s the one that the estate bar finds inconceivable (yes, I know what that word means). Taxes are not the worst thing that can happen to an estate. The number of f*ck-ups introduced into The Arts through attempts to minimize taxes as the core theme of estate planning exceeds the correct answer to the chessboard problem. Every week, by Tuesday. Yes, taxes are to be considered; but the moment there’s any intellectual property interest of any nature involved, they can no longer be the primary theme, regardless of the way that every estate-planning system that I know of (whether statutory or just “in the profession”) is structured. “IP interest” and “tax systems” do not play nice together; if the tax system weren’t so chaotic, and IP interests were not so chaotic, that “design” doesn’t belong in the same paragraph with either of them, I’d accuse them of being designed to conflict.

    As the client, your priorities determine your estate plan. Don’t let an estate-planning lawyer’s preconceptions of what is in your best interest determine what is in your best interest. By all means, consider it; but it’s only advice.

    * Disclosure: I was consulted by several coauthors of the “name author” in this matter but did not appear in the matter. I nonetheless hold most of the counsel whose names are plastered all over this fiasco — starting long before the “will” was executed — well below minimal professional regard.

    • My two cents:

      If you have significant IP assets, you should already have a competent and trusted IP lawyer.

      That lawyer should be able to direct you to a competent and trustable literary trust lawyer. (Same vetting applies, of course, to that recommendation – what other trusts do they handle, references, etc.)

      Of course, all too many never acquired the first. The already messy situation they had when alive then turns into a complete disaster when they pass on.

  2. It took 50 people, an enormous amount of effort, and probably a lot of money to publish the book the writer left unfinished?

    I have trouble getting people to write the one review they promised they would write.

    And John Kennedy Toole’s mother went to extreme efforts (and was effective) when her son left this world by his own hand.

    Disproportionate everywhere. MOST of the similar cases don’t have these outcomes. Most of the unfinished books stay (shudder) unfinished. There is often a reason why the writer didn’t finish it: they couldn’t. Ever.

    I have ONE book published. I have a second almost ready. I HAVE a will. The will doesn’t mention IP. And I’m still going to have to do all this thinking and figure out what to do with the IP considerations. Preferably NOW.

    Thanks for the reminder.

  3. Yes, I do agree with the necessity.

    I do have one intractable problem however — no natural heirs (I know that’s my own fault). How does one go about identifying worthy, um, institutions? Do literary heirships exist? Literary trusts for small folks like me?

    It’s not the (small) money I worry about, but the general copyright ownership, though when I die it will still be a going concern needing business management. So it’s not just an heirship issue but a more general estate plan — that needs a business component as well as an IP attorney. Where do I find that, in the absence of an institutional heir?

    A decade ago, early in my indie career, I speculated that indie writers turned publishers-of-others would aggregate the small self-pubbed authors through this sort of issue, but it doesn’t really seem as if that’s happened. Do any such aggregators exist?

  4. I always wanted to set up a tontine among writers. The last living writer gets all of the copyrights. HA!

    Song writers are selling their catalogs to venture capital firms. I don’t know where that will go in the future.

    I have watched the Hersey Trust all my life, thinking that that would be a good way to go. Problem is, I have watched the trustees and the court rob the trust over the past 50 years, so I have no clue where to start.

    Seeing the problem I will have to figure something out that will last the 70 years after death.

    Death and Taxes. All on Groundhog Day. Classic. This is just one more Liminal Event that I have to deal with.

    Thanks…

    Groundhog Day (1993) Trailer #1 | Movieclips Classic Trailers
    https://www.youtube.com/watch?v=GncQtURdcE4

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