Estate Planning for Artists: How To Plan and Protect Your Legacy
3.6.2025
Artist Estate Planning – Plan Early and Often
News articles abound about the epic legal battles over the right to control the estates of blue-chip artists, especially if they left behind fortunes to accompany the art and prestigious foundations that manage those artists’ legacies. However, for the vast majority of artists – even successful, respected artists whose work is featured in major museums – estate management can be very challenging, especially if there is not a primary gallery that is heavily invested in promoting the artist. Artwork is costly to store, insure, conserve and move, and maintaining an artist’s reputation through exhibitions and scholarly research requires expertise, relationships and tremendous investments of time.
Based on our shared experience with estate planning, administration and disputes, we propose some best practices for legacy planning that can be implemented even by early- or mid-career artists and incorporated in their general business practices.
But Wait, There’s More . . . In an Artist’s Estate
While estate planning is important for every adult, for creators of copyrightable works, there is an additional dimension involving making decisions regarding how their creative property will be handled after they pass away.
Generally, an “estate” means the property that a person owns during their life and upon their death.[1] It may include bank accounts, real property, shares appurtenant to a cooperative apartment unit, investment accounts, a life insurance policy, household personal effects, automobiles and other personal property.
An artist’s estate will also include original works of art that the artist still owns, archives and letters and related property. It also includes intellectual property, such as the copyrights to the artist’s works, trademarks (e.g., to a distinctive logo) and the rights to derivative works, such as adaptations. The creative estate can also be defined to include the artist’s rights under any licensing agreements, royalty streams and the right to enter into new licensing agreements. Digital assets relating to the artist’s artwork can include domain names; content of websites, blogs and social media; accounts with online retailers and distributors; and all the usernames, passwords and other information needed to access such materials and accounts. In addition to the physical items such as original works of visual art, artists have rights in agreements concerning those artworks (such as consignments and payments due) and marketing materials and plans. An artist may also own a studio or business that manages these works and rights. Unless a will or will substitute has been drafted by a lawyer experienced in artists’ estates, their estate planning documents often will not specifically identify any of these types of property.
Finding Someone To Fill the Artist’s Shoes
Creators, whether they be of books, works of visual art, musical compositions, scripts or other copyrightable works, can generally be referred to as “creatives” or “copyright owners.” In estate planning discussions with creative clients, regardless of the size of their audience or how much money they make from their work, there tend to be common threads that emerge.
The first is that many creatives care deeply about their works living on after their own lifetimes, so that their expression, and the ideas embodied in the expression, continue to be appreciated and experienced by more and more people after a creative’s death. Since most copyrights nowadays last in the U.S. for the life of the author plus another 70 years,[2] intellectual property estate planning can help ensure that revenue-generating opportunities for the works can continue to be pursued for the financial benefit of individuals or organizations chosen by the artist or author.
A second common thread is that there is not usually a large pool of people whom the creative would consider to be good candidates to administer the person’s intellectual property estate after their death. Indeed, identifying someone with a sufficient level of passion for the artist or author’s work, combined with having the time and the willingness to take on this responsibility, and being someone whom the creative person trusts will do so effectively, can be a challenge, especially if it is a labor of love that does not generate a substantial income.
A fair amount of the time, however, there is at least one person – such as a family member or a colleague – whom the creative will eventually conclude is the best choice, and that person agrees to be named. Ideally, one or more successors can also be identified, in case the first person is at any point in the future not available to serve in this role.
The third rather common thread is that in situations where multiple family members need to sign off on something, such as when a copyright comes into the possession of multiple heirs, it can be very difficult and time consuming to do things like getting everyone to review a document, a proposal or an email; to obtain their feedback; and even just to get their signatures on a document and have them all send it back.
Before discussing how these commonalities inform estate planning specifically with regard to a client’s creative estate, we will first address an important preliminary matter – namely, taking steps during life to ensure that the creative’s intellectual property, and a sufficient degree of control over it, is still in the person’s estate upon their death.
Don’t Lose Control!
Artist clients are usually laser-focused on the importance of their intellectual property, especially as new ways to disseminate and monetize images proliferate. Artists should be aware of issues created by the informality or lack of documentation in the art market, where consignments and sale agreements often fail to address intellectual property at all. Under federal copyright law, the default rule is that the artist retains control after the sale of a physical work unless the sale documents provide otherwise – so they should not do so. Licenses for reproductions should be clear and limited in terms of scope and duration. Defining the limits of these permissions on an ongoing basis is critical to ensure that the artist retains control of their work.
To enforce those intellectual property rights in the face of infringement, the artist must have registered works with the U.S. Copyright Office,[3] and it greatly simplifies matters if the artist does so on an ongoing basis during their lifetime. It is a rare artist’s studio that is diligent about this task, and it can be administratively challenging, if not impossible, to take care of at the end of an artist’s career, when memories are stale, records are missing and others may have been infringing the copyright for years.
Contracts, consignments, sales, gifts and loans should also define any intellectual property license, ideally as narrowly as possible. These records should be retained even after the contract is performed to document the license and also because these records can help heirs to locate or determine ownership of physical artworks and provide a historical record of exhibitions and publications.
Prenuptial or postnuptial agreements can also provide that the artist’s intellectual property is retained by the artist in the event of divorce; joint ownership of artwork with a hostile party can be devastating to an artist’s legacy management.
Managing an artist’s legacy after the artist’s death is challenging enough without missing information and the need to catch up on a lifetime of paperwork. Having complete documentation and registration will greatly enhance the effectiveness of any person tasked with this enterprise and increase the likelihood that anyone will take it on at all.
The Paper Chase
It may be advisable for the creator to collect all the physical materials together in a unified, clearly labeled location, such as a designated set of boxes or file drawers or their digital counterparts in a specific computer folder, thumb drive or other digital storage location. The creator’s will or trust can then make reference to those items and point out that they have been labeled as intended to be given to whomever the creative puts in charge of the estate after their death.
Putting records in order is especially challenging for artists given the comparative informality in business dealings in the art market, where verbal agreements remain too common. However, using and retaining detailed records will pay dividends to the artist and the estate. This includes maintaining inventories of completed work, documenting intentions for artwork that is not completed or not intended to be released, obtaining and retaining contracts (for sales, consignment or storage), documenting gifts or exchanges with other artists, correspondence and archives, registrations and licenses and information about digital records along with instructions on how to access them.
To Gift or Not To Gift
Disputes about lifetime gifts – and whether they were talked about, planned for the future or actually completed – occur frequently in estates of artists. Lifetime gifts of artwork where the artist maintained possession of the artwork at the time of their death are especially prone to create ambiguity and disputes, especially if there is no documentation to back up a claim on the estate by the party who believes they were gifted the artwork. Unlike for cars, real property, co-op shares or interests in bank accounts, there is no public registry or standard form to designate a change in title that can back up a claim of a gift of artwork. Nor are insurance records usually helpful to resolve title issues; artists often do not have insurance for loss or damage to their artwork, and when they do, it often is not itemized and updated.
There are three essential elements of a completed gift in New York: intent, delivery and acceptance. The “delivery” can be through a written document, if the artist retains possession of the work of art, but the document needs to evidence actual transfer of ownership at that time and not an intention to make a gift at some point in the future. Verbal agreements and ambiguous acts, such as placing stickers with an heir’s name on a work, are more susceptible to multiple interpretations that can lead to disputes, delay and expense. Here as well, clarity and documentation are critical. In Mirvish v. Mott, the New York Court of Appeals held that a handwritten, dated and signed deed of gift with an image of the artwork was sufficient.[4]
As a parallel to creative property, elderly clients sometimes ask legal counsel whether they should deed real property to their children now, since the client wants the children to ultimately have the property anyway after the client dies. If the client were to make such a lifetime transfer, though, they would give up a significant income tax advantage that comes from instead giving property at death, such as under a will.
Appreciable property that you pass at death gets a cost basis step-up under the Internal Revenue Code when you die.[5] For example, if the client bought a house in 1975 for $30,000, and now deeds it outright to their children, their children will acquire the $30,000 cost basis in the property, as if that were how much they had paid for it. Then, if the children sell the house for $1 million, they will have to pay income and capital gains taxes on the difference between the parent’s purchase price and their own selling price. The gain could possibly be mitigated somewhat by documented capital improvements that would add to the cost basis, but there is still likely to be a significant taxable gain.
On the other hand, if the parent instead gives the house, or the proceeds from its sale by the executor of the estate after the parent’s death, to the children under the parent’s will, the house will get a basis step-up when the parent dies, so that the cost basis will instead become the fair market value of the house as of the date of the parent’s death. Thus, if the house is sold not long after the parent’s death, there should be little to no taxable gain for their children or the estate.
The benefit of the step-up is also potentially quite significant for artists gifting their work. The artist’s cost basis in artwork they create is generally limited to the cost of the materials used in production of artwork – such as purchasing the canvas, paints and brushes – providing a relatively small cost basis. If the painting (or collection of many artworks) ends up having notable monetary value, almost all of it will be subject to capital gains tax. It will be advantageous from the recipient’s income tax perspective for the artist to give the painting to a beneficiary at death, such as under the artist’s will. The cost basis in that case will increase to the fair market value of the artwork on the date when the artist dies.
Leaving Nothing Behind Is Only a Good Idea When You’re Hiking
Intestacy is rarely a good idea, especially for artists leaving behind multiple heirs.
Dying “intestate” means without having made a valid will during life.[6] If a person dies as a New York domiciliary, and there is property in their estate which disposition is not already provided for under a will, a trust or through some other means, an administration proceeding will need to be filed in New York State Surrogate’s Court and that property will ultimately be distributed to family members in the shares specified by New York State’s Estates, Powers and Trusts Law Section 4-1.1, depending on whether the decedent was married or had children at the time of their death, and if not, what other surviving relatives the decedent left behind.
It is generally not advisable, however, for a person to rely on intestacy law to direct what will happen to property in their estate. For artists, this can be particularly troublesome because dividing up an artist’s work can undermine its management, and ambiguity about how it will be divided often leads to disputes among heirs, which is particularly damaging right after the artist’s death when there may be a resurgence of interest in the work.
Under EPTL 4-1.1, property passing in intestacy is to be distributed to certain persons based on their degree of family relationship to the decedent. For instance, if I die intestate and I am survived by my spouse and all of my children, the first $50,000 of my estate (other than any property passing by way of a trust or through some other means) would, under 4-1.1, be distributed to my spouse, and the rest of my estate would be distributable 50% to my spouse and 50% divided among my children. If I was survived only by my children, my estate would be divided among them. If one of my children predeceased me and left children of their own, my grandchildren would inherit their parent’s share. The statute also provides for numerous other permutations.
For an artist, this means the artwork, archives and intellectual property will potentially be divided among many family members. The intestacy provisions do not specify how to allocate individual artworks and who picks in what order. It does not specify whether the intellectual property will follow each artwork or will be divided among the family members. The allocation will likely need to wait until completion of an appraisal, which also could be disputed. This delay and the potential for disputes and separate management and inconsistent strategies by various heirs are rarely positives for values and the artist’s legacy.
One for All, All for One – Consolidating Control of the Creative Estate After the Artist’s Death
Most artists understand that they can distribute specific property to specific recipients upon their death through a will or will substitute, such as a revocable trust. The artist has the ability to identify which property will go to which beneficiaries and whether beneficiaries will own works separately or jointly. However, the management of creative assets by individuals owning separate works and potentially in competition or owned jointly by heirs who may not see eye to eye, can result in paralysis or inconsistent and conflicting strategies.
Businesses
If the creative has already established a business entity in association with their career that owns artworks or intellectual property, provisions should also be made for the disposition of the creative’s ownership interests in any such entity. If the creative has a single-member limited liability company, for instance, they could have an operating agreement that provides that when the creative dies, a particular individual will become the sole member and manager of the LLC, or multiple heirs will acquire membership interests. If the creative has not made such provisions in an LLC operating agreement, their membership interest in the LLC could expressly be transferred under their will, either in its entirety or in separate shares.
Intellectual Property Trusts
An artist can also choose to create an intellectual property trust to hold the artist’s creative estate, including but not limited to intellectual property rights, contractual rights, physical works and digital assets.
Putting control of the creative property in the hands of one trustee can help avoid inefficiency and even inertia. Let’s say that instead, the artist were to give their creative estate to three individual beneficiaries at death. These beneficiaries would have to make decisions together and engage in steps, potentially over a long period of time, with respect to the administration of the artist’s creative property. Decisions could include:
- Which of them will take the lead dealing with buyers or lessees.
- Who will manage and keep up to date the artist’s website, social media pages and domain name registrations.
- Choosing galleries to which to submit certain of the artist’s works.
- Who will negotiate terms with any galleries that may accept the works for exhibition and consignment.
- Whether to have certain unfinished works by the artist completed by another artist and then display them publicly.
Administrative tasks to be taken care of could involve:
- Arranging for individual shares of payments collected to be sent to each co-owner.
- Reviewing royalty statements, and perhaps having to chase down unpaid royalties, from the sale of prints or other reproductions of the artist’s works.
- Preparing bills of sale and obtaining the signatures of all the children as the sellers, and of the buyers, and collecting the payments and dividing them among the children.
- If any original work is sold on an installment payment basis, perhaps filing a form UCC-1 with the county clerk’s office to record a security interest held by the sellers in the work until all the payments are made.
- Sending takedown demand notices to online hosts or other online service providers when infringing images of the artist’s works are found online.
All the forgoing decisions needing to be made, and the tasks needing to be carried out, might best be put in the hands of one person. There are a few different ways that this could be accomplished in an artist’s estate plan.
Multiple Heirs
The first would be to give all the copyrights to one beneficiary outright. That person would essentially step into the artist’s shoes, managing the artist’s creative estate and receiving and keeping the revenues, just as the artist did during life. This sometimes is a workable approach, such as where the artist wants to give everything to their surviving spouse, or if they have an only child, to their child. Even in those cases, though, since the beneficiary will also die one day, the beneficiary will need to engage in estate planning specifically with regard to the creative property to ensure its ongoing administration after the beneficiary’s death. However, this approach would fail to provide financially for multiple beneficiaries.
A second alternative approach might be to give copyrights to different works to different people. For example, the artist could give the copyrights and related rights to works A, B, C to their oldest child; certain other works to the middle child; and the balance of the artist’s works to their youngest child. However, that approach would not resolve who gets put in charge of the artist’s website and social media pages. Moreover, it is often difficult to identify one person, let alone multiple beneficiaries, who will be willing to devote the time and effort necessary to administer the creative property. Further, as noted above, the beneficiaries might make decisions that undermine each other’s goals and preferences.
A third possibility is to set up an intellectual property trust. This approach involves transferring potentially all the artist’s or author’s creative property into a trust to be administered by a trustee (or co-trustees) after the creative’s death. The trustee will endeavor to make the creative property productive by engaging in all the promotional and business activities that the creative does during life. Periodically, the trustee will distribute net revenues (if any) to one or more beneficiaries identified in the trust document.
The trustee would manage the trust for the identified beneficiaries, or classes of beneficiaries, of the trust. The trust instrument might provide, for instance, that when a person named as a beneficiary dies, then that beneficiary’s share will be divided into subshares payable to their issue (that is, children or further descendants) who are then living.
An intellectual property trust can last for many decades after an author or artist’s lifetime, due to the long duration of copyright. A large inventory of artwork can also take decades to liquidate while maintaining price levels. It may be necessary, therefore, to include a rule against perpetuities clause in the instrument creating the trust.[7]
Based on this potentially lengthy duration for an artist-created trust for creative property, the trust should also provide for succession of trustees. This can include naming particular individuals and providing mechanisms for the appointment of additional trustees. One such mechanism could be allowing a new trustee to be appointed by the then-current beneficiaries representing more than 50% of the beneficial interests of the trust.
Whereas an intellectual property trust could be set up as a subtrust of a larger revocable living trust that contains non-intellectual property as well, a creative could also choose to set up a separate revocable living trust to be funded exclusively with their creative property. The creative could serve as the sole trustee, and be the sole beneficiary, of the trust during their life. The creative would have total control over the property in the trust during their lifetime with the ability to put property in, but also to take property out; to make distributions of income to the creative; to modify the provisions of the trust instrument by amending it; and even to shut down the trust. During the creative’s life, the trust would be inseparable from the creative’s own Social Security number, with the income of the trust getting reported on the creative’s personal income tax return (as opposed to on a separate tax return for the trust).
It is only after the settlor dies that the trust becomes irrevocable, is no longer subject to being modified and will need to have assigned to it a new taxpayer identification number. A successor trustee, or a co-trustee that the creative chose to serve with the creative while the creative was alive, would then administer the creative property for the benefit of one or more other beneficiaries after the settlor’s death.
The trust instrument could provide that once a year, on or around a certain date specified, the trustee will distribute the net revenues to the then-current beneficiaries of the trust in their respective shares, after first paying all trust expenses. For an artist’s estate, these costs can be significant, including storage, insurance, marketing and shipping fees.
Trustee Commissions
The trustee’s commission also warrants special attention in a trust holding artwork and/or intellectual property in artwork. Unless the trust instrument says otherwise, commissions for trustees are set forth in Section 2309 of the New York State Surrogate’s Court Procedure Act. However, Section 2309 does not provide a very practical commissions structure for these trusts because it is based on the total value of the trust assets at the beginning or end of each year. Unlike with property such as cash and securities, whose value can be easily ascertained and which can be easily liquidated, the value of the copyrights and related assets in an intellectual property trust might need to be determined by way of a formal appraisal each year in order to reliably calculate trustee commissions. It could also be unsustainable or impossible for a trustee to take a percentage of the entire corpus of physical artwork every year, especially if there is a large volume of work that it will take decades to liquidate. Both the payment amount and the annual appraisal would be tremendously burdensome. As an alternative to statutory commissions, book authors’ literary trust instruments often provide that the trustee will take an annual commission of 15% of the trust’s gross revenues for that year, comparable to a literary agent’s commission. Even so, the trust could need cash infusions to keep pace with expenses, especially if the trust is managing a large volume of physical artworks. In planning, it is critical to be clear-eyed about the financial viability of the options based on the mix of assets in the artist’s estate.
Donations to Archives
Alternatively, there may be some physical items – such as original works, correspondence, research, ephemera or other materials – that the creator wants to give to a research archive, such as at a school where the person studied or other institution that is willing to accept them. In such cases, the creator’s estate plan, or any deed of gift governing a donation of materials during the person’s lifetime, could make clear that this would be separate from the underlying copyrights to such items, which would be retained in the creative’s estate.
Foundations
An artist-established foundation is another common option for legacy management. Although many think of this when their heirs are not interested in managing the artwork, it is important to ensure that the financial planning is realistic so that the foundation can achieve the artist’s goals and, at a minimum, provide a secure repository for the artist’s legacy. There are many options: a foundation can be provided for in a will or established earlier and can either advance understanding of the artist and their contemporaries, carry out educational programming, or make grants for any purpose, not limited to the arts, or take on responsibility for authentication, licensing or a catalogue raisonné. The foundation can also be a resource for scholars, home for archives, and repository for work not intended for sale. However, the artist should have a clear-eyed view of whether there are sufficient assets to support establishing and administering a nonprofit. Finally, the artist should choose potential directors carefully, ensure they are willing to serve, and follow up periodically to make sure they remain interested. Having a lifetime of well-documented agreements, copyright registrations and other records will help make this an appealing and rewarding task for everyone who is involved.
Conclusion
In sum, even a modestly valued artist’s estate can be managed cost-effectively and provide for solid and consistent management of the artist’s creative output and legacy. It possible to consolidate assets under a single manager for the benefit of multiple beneficiaries, rather than distributing the property to heirs at death, but this approach requires thorough organization during life through creation of inventories and careful documentation of agreements and rights. It will also help convince someone to take the job of manager/trustee. Planning early and often should be the watchword for any artist hoping that their legacy will continue after their death.
The authors thank Carol Steinberg and the NYSBA Entertainment, Arts and Sports Law Section for organizing the event at The Bishop Gallery in September 2024 that was the basis for this article. This article originally appeared in the Entertainment, Arts and Sports Law Journal, the publication of the Entertainment, Arts and Sports Law Section. For more information, please visit nysba.org/EASL.
Judith Wallace is the chair of the art law practice at Carter Ledyard & Milburn, where she represents artists, collectors, artists’ and collectors’ estates and foundations, galleries and museums.
Ed McCoyd has his own trusts and estates legal practice and previously worked in the legal departments at McGraw-Hill Education, the Association of American Publishers and the Authors Guild.
Endnotes:
[1] EPTL § 1-2.6.
[2] U.S. Copyright Act § 302(a).
[3] U.S. Copyright Act § 411.
[4] Mirvish v. Mott, 18 N.Y.3d 510 (2012). Carter Ledyard & Milburn LLP and Ms. Wallace represented petitioner in that proceeding.
[5] Internal Revenue Code § 1014.
[6] SCPA § 103 (28).
[7] Under EPTL § 9-1.1(b), “No estate in property shall be valid unless it must vest, if at all, not later than twenty-one years after one or more lives in being at the creation of the estate . . . .” A rule against perpetuities clause in a New York intellectual property trust created as a revocable living trust might, by way of example, provide that the trust will be terminated no later than “the day twenty-one (21) years after the death of the last to die of all of the Settlor’s issue who are living on the date of the Settlor’s death,” at which time the balance of all trust property, if any, will be distributed to the then current beneficiary or beneficiaries of the trust.
