From Anne R. Allen’s Blog… with Ruth Harris:
Social Media Executor? That may not be a term you’re familiar with, but believe me, you need one.
That hit home for me this week after the tragic death of my friend, the kind, talented, funny author Barbara Silkstone. I hadn’t heard from her for a month or two, so I went to check her Facebook page. But it had been gutted. All posts, photos, friends, etc. had been deleted. Nothing was there but her name, header and a link to her blog. And the link was dead. Her lovely website and blog had simply evaporated. Thunk.
I put a note on my own FB page asking if anybody had news of her. A FB friend posted a link to a page at the Austen writers’ group. Barb had written a dozen or more Pride and Prejudice “variation” novels, and the Jane Austen fans kindly put up a memorial page for her.
They said she had died in mid-February. That meant she went shortly after our last phone conversation. I knew she’d been suffering from a spine injury. But she had seemed chipper and positive and had been looking forward to crab cakes for dinner. I’d been planning to phone her again soon. Instead, I found out she’d been gone for two months.
Only the Jane Austen fans knew.
But what about the fans of Barbara Silkstone’s hilarious mysteries and other comic novels? They have no way of finding out about her. Will people still buy books from an author who doesn’t seem to exist? Social media is so important to book sales these days.
Whoever her heirs are, they will miss out on royalties by erasing Barbara from the Web. In deleting her, they are deleting their own profits. Somebody needed to clue them in.
None of this would have happened if Barbara had appointed a social media executor. I’m kicking myself for not volunteering to do it myself. I have written about this before, but I can see it’s worthwhile to do an update.
. . . .
A social media executor can be any trusted friend or relative who’s savvy about social media.
Make it clear to this person — it’s best to put it in writing — what you want to happen to your social media and website/blog when you’re gone. If you have a free blog, do you want your executor to keep it up and monitor it for comments and spam? (If you have a self-hosted blog or paid website you want preserved, that should be put into your will and communicated to your financial or digital executor.)
It’s often best if your social media executor isn’t also your financial executor. Appointing an online friend or fellow writer will take the burden off the family. Families have so much overwhelming stuff to deal with when there’s a death, that social media can seem trivial. That may be what happened with Barbara Silkstone.
A social media executor can protect your social media accounts and notify online friends of your death.
They don’t have to deal with anything financial.
Things like bank passwords — and book retailer information for indies — need to go to your financial or digital executor. (You’ll need a digital executor if your heirs aren’t computer-savvy.)
Link to the rest at Anne R. Allen’s Blog… with Ruth Harris
PG says a person’s title doesn’t bring any sort of magic with it. He doesn’t know what a probate judge in any jurisdiction would do if faced by someone claiming to be a Social Media Executor who is disagrees with what the Executor named in the will, whose powers and responsibilities are set forth in various state laws and legal opinions by the state’s courts, is doing with a deceased author’s social media accounts.
PG suggests that an author’s executor needs to be a responsible individual with business savvy and good judgment. If a trust is involved in the author’s estate plan, the same qualifications would be a good idea for the trustee.
While there is certainly room for innovation in designing an estate plan for an author (or a great many other occupations), selecting someone whose middle name is “Reliable” or “Conscientious” is the first and most important thing to consider. A reliable and conscientious person can make good decisions on the spot, based upon facts on the ground after an author (or anyone else) dies. Tying that person’s hands with extensive directions in a will or trust when the state of things in the future is simply not known is, in PG’s deathly reasonable opinion, almost always a bad idea.
One of the most common stories one hears from estate planning attorneys working in rural areas is the difficulty in talking a third-generation farmer or rancher from inserting a provision in the estate plan that boils down to, “Whatever you do, don’t sell the farm/ranch!!!”
One such story concluded with a wiser/cooler-thinking individual saying, “Frank, your daughter owns the biggest scuba-diving school in Honolulu and your son is an investment banker in Manhattan. Which one is going to move to Iowa to farm corn?”
The last bit by PG hit a chord with me. When my mother passed in 2000, we had a parcel of land to deal with. A parcel that my great-grandfather had purchased when he was a circuit judge in the Oklahoma Territory. He might have purchased it in the 20th Century (I don’t know, never saw the deed, as one of my sisters took care of the headache).
At the time, he apparently was planning to build and live there, in what might charitably have been called a two horse town at the time. By the time my mother passed, it was engulfed by a very bad neighborhood of Oklahoma City.
We only found out about it when the death notices were posted to smoke out creditors; we figured that the City had seen it in Kansas papers, where much of my family was buried and would have to send billings for cemetery maintenance. Oklahoma City sent a bill for nearly $1,000 for clearing brush on the vacant lot over the years. It wasn’t even worth that much…
Having been stationed in Oklahoma City, I have one serious question: How would one tell, if one was in Oklahoma City in the mid-1980s (shortly after Penn Square failed), that one was in a “very bad neighborhood”? I don’t recall any neighborhoods inside city limits that were better than “dicey”…
I have no answer, C.E. Never been there. Not planning to visit, either, too flat for my taste. I don’t think even the sister that eventually took care of it ever went there, either. She worked out something with the city, or it might have been one of those neighborhood “revitalization” NGOs, to take care of the bill in exchange for the property. Only thing I had to do with the whole matter was to sign and get notarized a quitclaim to her so she could convey clear title.
I published books for a dear friend who is now deceased from 2011 until her death in 2020. As difficult as it is to believe, we never put anything in writing, even after her cancer diagnosis. Nevertheless, in agreement with her heirs, I continue to administer the business of publishing her books, and I pay her share of the proceeds to a trust created in her name for the benefit of her grandchildren. I do this because she was my friend and I want to be fair to her family. We have been fortunate in not running into any significant problems. But we definitely should have had some kind of written agreement!
Fortunate, you are. I do think, though, that you should get some sort of written agreement with the heirs, that you are managing the IP/SM, the profit sharing arrangement, and that her share is paid to the trust (and what happens when the grandchildren reach maturity, if the trust dissolves at that time). Oh, also whatever reporting you are to provide to the heirs.
I know, sounds “mistrustful.” But, as is said here and many other places, the one thing that you can depend on about people is that you cannot depend on their never changing. Should be fairly easy to just write out what the current verbal arrangement is, then run it by a lawyer. (I’m not sure that it even has to be an IP specialist – but one of the lawyers here who has more knowledge than staying in a Holiday Inn Express could correct me on that.)
As it happens, I am an intellectual property attorney, though I no longer practice. The heirs and I have some written understandings in the form of email correspondence, but I will certainly now reduce it to something more formal. That’s why I say “hard as it is to believe,” I never set up a contract with her! When we started, it was in the infancy of indie publishing, and she earned almost nothing on her books. Now they earn more, which is interesting. But once my friend got ill, she did not really want to contemplate her demise. And then she was too ill to discuss it competently.
This is general commentary and not specific advice. (Of course: There’s no bill attached <vbeg>)
It’s not at all too late to do ratification agreements, and in some states the Personal Representative of the deceased might need such a document to formally close probate. This is also the time to ensure that y’all (that means both you, as the publisher, and the heirs) have considered and have a firm grasp on how 17 U.S.C. § 203 can/will operate, and manage the contact data therefore — since it doesn’t matter what was in the will.
Side note: Nobody “avoid[s] probate,” notwithstanding the late-night-TV and podcast ads. There may be no hearing or other judicial proceeding, but everyone goes through probate in order to resolve the other inevitability: Taxes. (Even when no probate taxes are due, because “probate” is how the heirs’ basis in what they inherited is established — again, even if there’s no judicial proceeding.)
A written agreement is usually a good idea, but, if I had to choose between a written agreement with crazy heirs or no written or implied agreement with not-crazy heirs, I would choose the second situation every time.
As I’ve mentioned before, my one iron law of legal practice and life was and is, “Don’t do business with crazy people.”
So you don’t do business with commercial publishers… at least not anymore?
That was the front end of a 1-and-1 — not something I miss on purpose. (Missing due to lack of practice is another matter.)
It sounds like you’re a very good person to have as a friend, P.
The critical premise is simple:
What does the law of the governing jurisdiction say about a “divided executorship” (which is not the same thing as an executorship shared between multiple individuals, preferably with a deadlock-breaking mechanism)? Once one knows that, one knows whether the “Literary Executor” (and/or “IP Executor” and/or “Social Media Executor”) is merely an advisor to the actual Executor; can be a designee of the Executor, performing certain specified-in-advance tasks otherwise allocated to the Executor; or can have independent and direct authority subject to overruling under only the same mechanisms as a properly formed trust. Which is not at all the same thing as saying it’s a good idea in the actual circumstances, and presumes that there’s no IP holding company in the middle, or as the OP might consider an SM holding company in the middle, which — guaranteed — will not transfer via the same instrument and in the same manner as the personal will.
This is a hint that only counsel licensed in the relevant jurisdiction should even think about writing a will that divides (as distinct from shares!) the executor’s authority. However good they are, “self-help” books cannot cover this in detail… and the treatises in the area don’t do so accurately, being obsessed with minimizing tax burdens (a concept inconsistent with “managing a social media legacy”).†
And don’t forget that other law and other circumstances may bear on this, too. Consider a California-based author who gets married shortly after executing a will with an otherwise-correct “social media executor.” California law provides an ownership interest in IP created during the marriage to the surviving spouse, unless there’s either an explicit agreement otherwise or a specific provision in a later-occurring divorce/dissolution decree. Nobody knows if this extends to “control of social media accounts,” though (it’s currently wending its way through the Probate Court in ____ County, and probably won’t result in a reported decision… which wouldn’t be binding… and that’s just a case I know about). Worse, nobody knows if any other state would follow California on this, or vice versa.
† Yes, this is an intentional shot at the stiffs-and-gifts bar, and even moreso at the publishers of legal treatises in the area. This shark has five fingers on his left hand, but needs only one of them to express his opinion of focusing on time-of-execution monomania concerning prospective estate taxation under the law in effect at the time of execution as the controlling consideration for proper (or even, in some instances, lawful!) care and disposition of IP following the creator’s demise. Can you guess which one?
You’re wagging your index finger at them, right, CE?
I’m not nearly so genteel as PG, so move one finger outboard…