While Personal and Estate Planning can be complex and difficult for anyone to do, artists have the added burden and complexity of making specific provisions for their art to ensure their legacy. This blog post addresses some important items for an artist to consider while doing their estate planning, as well as provides some insight into how to catalog artwork as assets. This information should not be relied upon as complete or considered a form of legal advice. Rather, artists should seek legal counsel for consultation and advice for their own situation.
Why is personal and estate planning important for an artist? A personal and estate plan establishes a structure to preserve and develop the legacy of an artist, and ensure that all assets including artwork are protected and distributed according to their wishes.
Important personal and estate planning documents relevant for artists include:
- General Durable Power of Attorney for financial matters names an agent to manage personal property and artwork and related rights.
- Health Care Durable Powers of Attorney and Mental Health Advanced Directive arrange for management of personal and health care and can address chronic or cyclical mental health issues.
- Revocable Living Trust is a document created during a person’s lifetime to hold and manage assets, including artwork and related rights. It is important to note that the trustor (the individual who creates the trust) can also be the trustee (the individual who manages the trust and receives the benefits of the trust as the beneficiary). It can also provide for management of these assets after the death of the trustor.
These documents, along with a Will, can manage an artist’s legacy.
Two types of assets that artists should consider in estate planning are the art they create and their legacy, of which the value is based on earning potential. Both need to be addressed in an artist personal and estate plan.
Another thing to consider as an artist when creating a Personal and Estate Plan is that art created during a marriage is not the sole property of the artist. It is community property shared with the spouse. It is important to clearly state in estate planning documents which assets are separate property and which are community property, so that accurate plans can be made for the entire estate.
In addition, probate property includes all the assets that are distributed according to a will, as opposed to non-probate property which pass through a beneficiary designation, a trust, or a contract. Wills are public information, and trusts are sometimes used when there are privacy concerns because they are not public record. Trusts can be helpful to distinguish separate from community property, or to manage a particular asset like artwork.
Personal and estate planning documents can be updated and as personal choices, decisions, and assets change throughout an artist’s lifetime. Further, the relationship with an estate planning attorney will evolve over time. As such, it is important to meet with an estate planning attorney, and work with them regularly to create and update a personal and estate plan to ensure that assets including art are handled appropriately.