Article by Nicola Solomon published in The Author of Spring 1993. Leading literary lawyer Nicola Solomon, a Deputy District Judge and Partner of Finers Stephens Innocent (179 Great Portland Street, London W1W 5LS, tel. 020-7344-7652) has kindly given AKME permission to reproduce this article. She can be e-mailed at nsolomon@fsilaw.co.uk.
The article is reproduced without any comment or editing by AKME.
'Maybe I am not worth a groat,
But should I die worth something more,
I leave it all, with my old coat,
And all my manuscripts in store,
To those who will the goodness have
To cause my poor remains to rest
Within a fitting shell and grave;
This is the will of Joshua West'
So wrote Mr West in 1804, bearing out beautifully the advice given by lawyers: wills need not be incomprehensible, long or boring, and you should make one whether or not you think you have any money to leave. The fact that copyright lasts for fifty years after your death and the complications of the rules regarding literary works make a will particularly important for authors.
Here is a list of the most common excuses for not making a will.
I've got no money - only debts.
You may find you are worth more than you think! The average value of estates on death is now £68,000. Even if you are mortgaged up to the hilt that mortgage will normally be paid off by an insurance policy when you die leaving a value in a house if you have one. Further, your literary works can go on earning money for you after your death. Your annual income may not be enough for you to live on but royalties and PLR will continue to accrue and your work may become more popular later.
Won't it all go to my family anyway?
The rules on intestacy are fairly complicated, and it is quite likely that they will not reflect your wishes. If you are a married person with children your spouse gets everything up to £75,000 and your personal possessions. Anything remaining is divided into two. Half will go to the children at 18 but in the meantime the money will be held on very restrictive statutory trusts which may not best utilise the earning power of the money. The other half will be held in trust for the lifetime of your spouse and he or she will only get the interest on that money or the income earned from it (for example the royalties earned under a publishing contract). When your spouse dies this half goes to the children. £75,000 is not a lot of money and may not even enable your spouse to inherit your house.
If you are a married person with no children, and you have parents, brothers or sisters, nephews or nieces living then your spouse gets everything up to £125,000 and your personal possessions. Anything remaining is divided into two. Half of this goes to your spouse and half to your parents. If no parent is living then it goes to your brothers or sisters or their children. Again this could mean that not only do people benefit who you never intended to have any money from you, but also your copyrights are divided in half which will make management of them extremely complicated and could well cause problems between your spouse and other relatives. If you have children but no spouse then everything goes to them automatically. If you have neither spouse nor children then it will be given to your parents and if no parents are living then it goes to your brothers or sisters or their children.
I've got no one I want to leave it to.
Maybe that is true but if you do not name anyone then your estate will be given to your family in the order set out above, and if none of those are living it will go to progressively more distant relations until it finally goes to the Crown coffers. Even if you have no particularly close friends, most people have a favourite charity which they would prefer to benefit than the Government. (Incidentally the Society of Authors is always pleased to receive bequests.)
I don't know who I would trust to deal with my estate.
The advantage of having a will is that you can appoint an executor to administer your estate and guardians for your children. This means that you can choose the person you want to deal with your affairs. You can also choose different people for different purposes. For example it is very common to choose one executor (perhaps your spouse or a solicitor) to deal with winding up your estate and ensuring that money is paid to the proper beneficiaries and a separate literary executor who can act as a trustee of the literary assets including manuscripts and copyrights and manage them for the beneficiaries for whatever period you want. The Society of Authors Quick Guide 6,'Your Copyrights after your Death', explains what happens to your copyright when you die and the role of a literary executor.
I'm too young.
Well, while wishing you a long life, we never know when the Grim Reaper will arrive and it is as well to have your affairs in order. Young people are likely to have young families who are less able to cope if you die suddenly, and may need carefully thought-out provisions for their welfare. If you do not leave a will, the rules on intestacy for young children are extremely complex with the money being held on 'statutory trusts' which can only be invested at low rates and without the complete flexibility you would probably want the carer to have for them.
It's too expensive.
Most solicitors will prepare a will surprising cheaply (banks are rather more expensive) and the expense is almost certainly worth it compared to the expense of winding up a muddled estate on the intestacy. You can also make your own will but do be careful - it is home-made wills that provoke the most litigation.
It's too boring.
Making a will may be boring but it can also be fun, since English wills still allow you to put in bizarre bequests and give messages from the grave, such as the testator who left instructions that a lemon should be sent to the lnland Revenue with the message "now squeeze this'. It can also allow you to say thank you by giving small bequests or gifts of sentimental value to people who have been important to you. You may also wish to give your original manuscripts to a particular person or even a museum.
I've got one somewhere - I made it about twenty years ago.
Have you looked at it since? If you have married in the meantime it will have automatically been revoked, if you have divorced, your 'ex' will automatically have been cut out; or the will may simply not suit your purposes in other ways. Children may have grown up, other beneficiaries may have died, your views may have changed. As a rule of thumb you should reconsider your will every ten years and at all major life changes to ensure that it still fits your needs.
It will all go to the tax man anyway.
In fact inheritance tax varies depending on who you leave your assets to, and your will can be used as a tool to minimise the tax you pay. This should be considered very carefully with a solicitor or an accountant, particularly because the Inland Revenue may well take the view that your copyrights are of a high value and subject to a large amount of tax on your death (see David Jacobs of Touche Ross' article 'Tax and Copyright' in The Author, Winter 1991).
All in all there are no good reasons for not making a will. As in other areas of life, keeping your affairs in order may be the best legacy you can leave behind.
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