Art Law Journal
Estate Planning for Visual Artists: The Sooner The Better
Portrait of Gerrit Jan Michaëlis by Jean Bernard
Public Policy

Estate Planning for Visual Artists: The Sooner The Better

Artists and designers spend so much time and effort in creating their work, yet most don’t consider what will happen to their work, and their legacy, after they die. Mortality will always catch up with us, and often unexpectedly, so it pays to think about what you want to happen to your work after you are no longer able to create or control the process and distribution as well as providing a guide to your heirs as to how you want to be remembered. This becomes particularly important when other people or organizations have a claim to a portion of your assets, such as a spouse, children, manager, publisher, gallery, or business partner.

What to Consider in Estate Planning for Visual Artists

There is a lot to consider in Estate Planning for Visual Artists that would not apply to traditional estate planning. Like all legal issues, the process can seem daunting because most people are not well-versed in the legal jargon (and hiring a lawyer can be expensive) but just think about what can happen if you don’t provide guidance.

  • What will happen to your artwork or other assets like your expensive equipment, sketches (things that represent your process) computer, materials, or even your studio?
  • Who will make sure that your assets are distributed according to your wishes and not by a judge?
  • Depending upon your art’s value, some serious challenges could break out among your relatives, which you may want to avoid.
  • You may want some of your work to be donated to a charity or some other persons or organizations. Without a legal document, it won’t happen, even if you have made your wishes known verbally to someone.
  • If any of your work is under contract or license, your beneficiaries need to know about it.
  • You probably have a lot of unseen work that may have value today or in the future (think Basquiat!) so your breadth of work, including small items such as pencil sketches, should be cataloged and distributed according to your wishes.
  • Tax implications from giving your artwork or other assets to your beneficiaries may make it difficult for them to accept. Tax liabilities can be limited through proper planning.

While it is easy to push Estate Planning off, it is best to begin planning for your legacy at the very beginning of your career. Whether you are a mid-career artist showing regularly or an emerging artist just beginning to exhibit, top on your list of priorities should be a plan for the preservation of your artwork and dissemination of your assets. At the very least, you should become familiar with the estate planning process so that you can identify the right time to formally prepare and know the documentation you will need to provide.

A Guide to Estate Planning for Visual Artists

Estate Planning for Visual Artists Front Cover

Ensuring that your artworks, contracts, legal documents, and related materials outlining your artistic practice are preserved and handled sensitively can be daunting and for someone who wants to focus on their creativity, it can be boring and annoying.

However, being successful in any art-related field today requires more than just being an excellent creator. You should be spending a portion of your time understanding the “business of art.” Estate planning may seem like it won’t help your current career objectives but, in fact, it includes many of the business concepts that make artists successful.

As the first step in understanding Estate Planning for Visual Artists, you can always look to the internet for resources but one resource that we highly recommend is the recently published (and aptly named) Estate Planning for Visual Artists: A Workbook for Attorneys and Executors by the Joan Mitchell Foundation. Free and available for downloading, this initiative is aimed at curbing a lapse in artist estate planning. The publication – produced in partnership with the Arts & Business Council of Greater Boston – marks a watershed moment for artists seeking to protect their legacies. A part of the Foundation’s Creating a Living Legacy (CALL) initiative, the workbook provides a comprehensive look at the steps needed in good estate planning. Any artist approaching their artistic practice as a career rather than a hobby benefit from a better understanding of how to set up their practice so that it is legally protected and preserved to the best of their ability.

Shervone Neckles-Ortiz, Artist Programs Manager at the Joan Mitchell Foundation, has overseen the workbook’s development and seen that artists’ and attorneys’ reflections are both equally reflected over the course of the publication’s contents.

“The Creating a Living Legacy (CALL) initiative is an essential component of the Joan Mitchell Foundation’s work, as it engages with the dual aspects of our mission to provide direct support to artists and responsibly steward Joan Mitchell’s legacy,” said Christa Blatchford, CEO of the Joan Mitchell Foundation.

What You Will Learn In Estate Planning For Visual Artists

Central to preparing for comprehensive artist estate planning are two key concepts set forth in the publication: intellectual property and artwork documentation. Artists are invited to understand these crucial aspects of protecting and surveying their artworks in order to better communicate with their legal team to preserve their legacy. Artists unaware of their artwork’s copyright or trademark protection status and/or unaware of the artworks currently in storage or in their studio are encouraged to inventory it and amass the necessary paperwork for lawyers to review. By preparing adequately for attorneys to assess their work, artists are on their way to ensure that their work is accurately portrayed to their legal team.

From there, the publication takes formative steps to bridge existing knowledge gaps between an artist and their legal team. The resource translates key artistic concepts into legal descriptions that attorneys can quickly grasp, creating a framework of understanding between the fine arts & legal industries. Wills, trusts and company organizations – straightforward legal concepts for any attorney – are approached from the perspective of an artist securing a future for their artistic production. Nuanced concepts related to the fine arts market are captured and easily laid out chapter after chapter so that legal teams can ensure they and their artist clients are on the same page.

Through easy-to-follow case studies and reflections from other artists who are already paving their way toward a formidable arts estate of their own, readers gain a greater understanding of the implications of correct estate planning. In addition to the basic categories that artists can expect – outlining artworks and their values, ownership details, contracts, and will and trust details related to artworks – artists are also encouraged to take stock and plan for non-artwork assets. In addition, the range of viewpoints provided by working legal and arts professionals with varied career experience adds to the comprehensive advice laid out in the publication.

For artists who have endured contracts between independent art dealers, galleries, exhibition spaces, and art fairs, approaching the task of building an artist estate can seem as tedious as it is necessary. Approaching this challenge well informed with the knowledge of legal terms and actions required to ensure one’s artistic legacy remains intact can result in a much smoother and more meaningful experience. Artists can trust experts from a foundation that has consistently and admirably protected the legacy of Joan Mitchell’s incredible estate. The detail-oriented approach presented in this publication by the widely respected Joan Mitchell Foundation cuts through the hype and confusing jargon to present straightforward, actionable advice that benefits any artist beginning the process of estate planning.

Are you planning your estate as a visual artist? Have any questions? Leave us a comment!

About the author

Audra Lambert

Audra Lambert is Managing Editor+Curator, Artrepreneur's Art Business Journal & Creative Career Center. She is a curator, art marketing consultant, and editor based in Sunnyside, Queens, where her Chi-Spaniel puppy graciously allows her to cohabit.

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