Estate Planning for Authors: How to Protect Your Books (and Your Family) After You Die

You will die. It could be today, it could be tomorrow, but no one lives forever. As an author, your writing could outlive you, and the copyright of your book certainly will.

In fact, your book will live 70 years after your death. If you published a book today and died tomorrow, your book maintains its copyright until 2096. Your grandchildren’s grandchildren could be responsible for managing your intellectual property.

Can you name all of your ancestors who died in the last 70 years? I have a great-grandfather who wrote books and died, and I have no idea who owns the copyrights. I don’t know who to talk to if I wanted to republish them.

As an author, if you’re not careful, your copyright could lock your book into a paper prison, so it is forgotten and lost forever. Or it could become an asset that helps your heirs for a long time.

. If you’re an indie author, your entire publishing business lives inside a handful of accounts with an email address and password that your spouse probably doesn’t know and isn’t written in your will.

If you were to die today, how would your family access the things they have the right to own? How do they prove they’re your heirs? How do they transfer your Amazon account? If you don’t have a will, the government decides, and you don’t want that.

Stieg Larsson wrote The Girl with the Dragon Tattoo and died of a heart attack at 50, before his book was published. His longtime partner of 32 years got nothing. Because they never married and he never wrote a will, his estranged father and brother inherited everything, including the rights to a trilogy that went on to sell 50 million copies and spawn multiple films. His partner had a laptop with the unfinished fourth novel, and she is still refusing to hand it over. The Larsson estate has been in a legal war zone ever since.

Your book may not be worth millions, but it is worth something. A simple estate plan today can help you avoid family drama for your heirs tomorrow.

I recently interviewed an attorney who practices both estate planning and copyright law, a combination that is remarkably rare. Kelley Way has worked with authors for nearly a decade.

Is estate planning really necessary if you’re not wealthy?

Thomas: Some people listening are thinking, “Estate planning is only for rich people. I’m just an author.”

Kelley: Many people think only rich people need wills or trusts, but I disagree. If you have anything at all, you have stuff that’s worth fighting over. In California, probate is required if you’re worth more than roughly $200,000. If you own a home in California and don’t have a trust, you’re going to probate after you die.

What’s the difference between a will and a trust?

Kelley: Most people could benefit from having a will to say where everything goes and who’s in charge of getting it there.

A trust goes further. It can own things and manage them over time, and it keeps you out of probate.

A will doesn’t own anything. It just says, “Here’s where everything goes.” A trust can own things and manage them over time, but it can only own and manage the assets you put into the trust. Nothing is there automatically, and anything you don’t put into your trust is part of your general estate, which the will is responsible for.

Should authors put their copyright into an LLC?

Thomas: Many authors use an LLC to run their publishing business, and some ask whether they can just put the copyright into the LLC.

Kelley: Some people want to use an LLC for liability protection because they think, “If there’s a lawsuit, they’ll sue the LLC and my personal assets are protected.” But a business attorney told me that won’t work for an indie author, because you are personally liable as the one who wrote the words. Even if the copyright is in an LLC, you personally can still be sued.

In California, LLCs also cost around $800 to $900 a year to maintain. If your book isn’t making at least $1,000 a year, you’re paying more to maintain the LLC than you’re earning from your copyright.

Thomas: It also depends on what kind of liability you’re worried about. Most attorneys assume the only liability an author faces is libel or slander. Libel is written; slander is spoken.

Kelley: That’s correct. They’re both defamation.

The other lawsuit authors worry about is copyright infringement, and an LLC won’t help with that either. Also keep in mind that your ownership interest in the LLC is part of your estate and subject to probate, which is why a trust may still be a good idea. You can name your ownership interest as a trust asset.

Thomas: Could you add your heirs as non-controlling members of the LLC and have the agreement shift control on the death of the managing member, handling the whole thing outside of probate?

Kelley: Yes, that could work. You could set up within the LLC how ownership passes, or name it as a trust asset and specify in the trust how it passes. Either approach would prevent issues during probate.

Thomas: This is one of those areas where you really want to talk to somebody in your state specifically. Estate planning law varies state by state.

Copyright law is federal law, and fairly standardized internationally as well, because the United States pushed other countries to sign a copyright treaty. Some honor it more than others, but it’s reasonably consistent.

Should you release your book into the public domain when you die?

Thomas: I advise most authors to release their books into the public domain upon their death. Without you to promote it, your book isn’t very economically valuable, and it can become a burden for your heirs.

If you release it to the public domain, someone who is genuinely motivated may keep it alive. They would be able to print copies, market it, introduce it to new generations. Your book may end up reaching more people than it ever would if you held that copyright tightly.

Kelley: It depends on your goal. If your goal is to get it out there and have as many people as possible read it, that’s not a bad idea. If your goal is to maximize profits, it won’t work as well. You have to decide what you want to happen when you’re no longer at the helm.

Do you have somebody who knows what you’re doing and can pick up the reins? Orwill the person who gets it have no idea what to do, sit on it, and watch the money dry up?

Thomas: And the money will dry up very quickly because most publishing income is not truly passive. You’re out there hustling, going on podcasts, writing new books, running promos, going to conferences. All of that activity is generating sales. If you’re not alive to do it, income dries up fast, but the intellectual property lasts decades beyond your death.

The current copyright law was not created to preserve literature for future generations. It was created by and for corporations like Disney, whose lobbyists wrote the legislation. Multiple versions of the bill extending copyright were literally called the Mickey Mouse Preservation Act. Releasing a book into the public domain also opens it up for derivative works. Think of Sherlock Holmes, where anyone can write a story without a rights holder objecting.

How do you release a book into the public domain?

Kelley: There’s no legal mechanism to officially surrender copyright outright. However, Creative Commons licenses are a widely used solution. They let you attach a license to your work that tells the public they’re free to use it under certain conditions, such as attribution. You can also put language in your will saying you’re giving up your copyright rights and making it free for everyone to use.

One other thing worth knowing is the termination right under copyright law. If you don’t like a deal you made, you have the ability to take your rights back after 35 years by giving notice. You can exercise that right as early as the 25-year mark. The latest you can act is two years before the expiration date. The purpose is to let you renegotiate now that everyone has a better sense of the work’s value.

That means anything transferred through a will is not subject to the termination right. If you give up your copyright in your will, your heirs can’t undo that later. But if you made a contract with a publisher who turns out to be terrible, your heirs could exercise the termination right to get the rights back.

Thomas: That is only valuable for a tiny fraction of books that still have economic value 35 years out. Most books earn the bulk of their income within 60 to 365 days of release, then sales drop every month until they hit a low plateau, eventually competing with used copies on Amazon.

Kelley: It’s rare that a book still has significant value after 35 years, but it does happen.

The famous example that prompted the idea was Superman. The creators sold the rights to the first Superman comic for what would amount to around $100 today. Everything after that was work for hire, so the creators never saw the massive profits DC Comics earned from their character. The termination right is meant for cases like that, where you didn’t realize how valuable something was when you made the deal.

Thomas: And what makes Superman valuable isn’t the original comic; it’s the derivative rights and the ability to write new stories with the character.

Most authors’ heirs are not positioned mentally, economically, or dispositionally to create derivative works. Christopher Tolkien is a remarkable exception, as is Brian Herbert with the Dune books. Brian wrote a whole prequel series, and that’s where the Butlerian Jihad language we now use regarding AI comes from. But those are two examples out of the entirety of literature where someone who inherited the rights continued the work.

People generally don’t read books by dead authors until they’ve been dead long enough for the work to enter the public domain. Don’t discount the public domain.

My own book is published under a Creative Commons license. Creative Commons is modular, which means you can choose which rights to reserve, whether to require attribution, allow commercial use, and so on.

The public domain version, Creative Commons Zero, reserves no rights at all. It’s easy to fear that outcome, but most literary works aren’t popular enough for anyone to do anything malicious with them after the author has died.

Kelley: My very first case involved a fan who had taken a best-selling series and created rather explicit content with it. The rights holders hired me to pursue them, and they said it wasn’t the content itself they objected to but the quality. Readers were mistaking it for something canonical, and that was a New York Times best-selling series.

Authors who aren’t best-sellers probably don’t have to worry about that.

Thomas: If your books are bringing in less than $1,000 a month with you alive, they’re probably more valuable to humanity in the public domain. Nobody will want to make a derivative of something earning that little.

But if your books are making millions, you have valuable intellectual property you can protect for your heirs.

What is a literary executor and do you need one?

Kelley: A literary executor, or literary trustee, is someone whose only job is the literary part of your estate. Somebody else can handle everything else. This person is focused solely on your intellectual property portfolio, following your instructions, whether that means putting it in the public domain, managing the assets over time, or distributing it to the people you want to have it.

The author must decide whether to release it publicly, give it outright to chosen heirs, or have the executor manage it so income flows to the right people while someone who knows what they’re doing handles the business side.

Thomas: Are there companies that take on that role for a percentage of royalties, or is it always someone you find yourself?

Kelley: I’m not aware of an organization that does that. I know someone who is interested in the concept and considering starting something along those lines, but nothing exists yet that I know of.

Usually, your literary executor is someone you know who’s willing to be taught what you’re doing and willing to pick up the reins. It could be your literary agent or entertainment lawyer, who might have the know-how to keep things going. You’d want to have that conversation with them first.

Thomas: You’d have to be making enough money that whatever fraction the executor receives is a motivating fraction.

More important than the legal side is the practical. Important information such as your KDP password, email service password, website password, and the name of your cover designer is trapped in your head right now.

I’ve watched a widow in our church navigate this. Her husband had written a beloved book series and was still getting movie deal inquiries. With no publishing background, she was trying to figure out what’s real and what’s Hollywood blowing smoke.

It would have helped if her husband had used a password manager with her named as the heir to the vault. I’ve talked often about the importance of using a password manager and password vault and which one to choose.

You don’t want to leave your grieving family a million-account reset scavenger hunt. All of that could be avoided with a password manager, which costs around $5 to $10 a month and also reduces your own daily password stress. The number one support issue I see is people locked out of accounts because they used more than one email address, can’t remember which one, and reused passwords that got compromised.

Kelley: Whatever system you use, you want all that information in one place, where the bad guys can’t reach it but where the people you want to have access can get to it.

Finding the assets and then getting control of them is one of the biggest pain points of any estate. Financial institutions are cautious about giving access to anyone, for good reason. For authors, it’s even more complex, because your heirs may not know what they’re looking for in the first place.

What should your heirs do with your accounts when you’re gone?

Thomas: One of an author’s greatest assets, beyond the book itself, is the email list you’ve spent 10 or 15 years building. Your heirs may not know what an email service is or why they’re paying for a subscription. They’d likely cancel it. But that one email saying, “Hi, this is the son of the author who just died. Here’s a link to buy the book,” could cover years of subscription costs and be an opportunity to give readers a proper farewell.

A little planning and a little frankness goes a long way. I opened this episode bluntly on purpose. The problems you spend your career fixing, Kelley, are problems that could have been avoided if people just talked openly. You could have a conversation in front of your kids and say, “I have three kids, and my third child is the most literary, so I want her in charge of the books.” Say that in front of all three and let everyone process it. Then they won’t be fighting before a judge because they already heard it from you.

Kelley: A litigator I spoke with confirmed that shock is a major driver of those lawsuits. The heirs are thinking, “What? That’s the plan? How dare they?”

I advocate for transparency with my clients, but I do understand that every family is different. In some family dynamics, being open makes things worse. But for most people, letting everyone know the plan and giving them time to adjust prevents far more conflict than it causes.

Thomas: My grandfather put language in his will that if his children fought over it, everything would go to the Catholic Church. None of his children were Catholic, and neither was he. His highest priority wasn’t where the money went. It was that his kids would get along. That language was a very effective deterrent. Is that kind of condition enforceable?

Kelley: Absolutely enforceable.

My trusts and estates professor’s very first case involved a father who said his son had to marry a Jewish woman by a certain age or the entire estate would go to Israel. The son tried to argue it was discriminatory. The court basically said, “It’s his estate. He can do whatever he wants.”

The court is trying to figure out what the person wanted and make that happen, as long as it’s within legal limits.

What can you control through your will?

Thomas: What about unpublished works? Jules Verne’s great-grandson found a manuscript in a trunk that Verne had locked away because he knew it wasn’t good. There hadn’t been a new Jules Verne book in 100 years, but in 2005 they published that manuscript. The publisher wisely didn’t send review copies because they wanted all those sales upon release.

Can you instruct your executor to destroy things? Or say, “If my book isn’t finished, I want Brandon Sanderson to complete it”?

Kelley: You can absolutely put that kind of language in. You can direct them to destroy things or preserve them. You can direct them to have a specific person, or someone who fits certain criteria, finish your works. Just make sure, if you’re naming someone like Brandon Sanderson, that they’ve agreed to it.

Wills and trusts offer a lot of flexibility. The general rule is, if it’s legal, you can do it.

Thomas: One way to think about it is to ask whether you could have done it while alive. If you were alive, you could tell your son, “Marry by age 28 or you don’t get a cent.” The court is essentially stepping into your seat and doing what you would have done.

Kelley: The court is trying to honor what the person wanted, within legal limits.

What should you do right now if you have no estate plan?

Thomas: For someone who has no planning in place and is now realizing they need to act, where do they start?

Kelley: Think through the things we’ve discussed. Who do you want it to go to? Who do you want in charge? How much is it making, because that determines how complex a plan you need?

Regardless of whether you pursue a formal estate plan, put together a portfolio so someone can make sense of your intellectual property. I’d suggest talking to a lawyer. Even if the outcome is that you don’t need anything complex, at least you’ll hear that from an expert instead of assuming it and being wrong.

Thomas: As you think about your estate planning, consider that the more you help your children now, the more grandchildren you’re likely to have. Helping your kids get out of debt while you’re alive may do more for your family than leaving them a large sum after you’re gone and after they are already financially established.

Estate planning isn’t always about holding everything until the very end. The same is true with intellectual property.

If you’re older and tired of managing your books, you have options. You could release to the public domain now, or find a literary heir, another author who might continue the series, while you take an advisory role.

Kelley: You can absolutely do that. Just be aware that if you transfer rights during your lifetime through a contract, your heirs could exercise the termination right to reclaim them later.

Thomas: To avoid the termination right, the public domain path or the Creative Commons path may be more final.

Kelley: There’s no statute specifically governing Creative Commons. It’s a movement that looked at existing law and came up with a solution that works within it.

Could piracy save your book?

Thomas: For many authors, piracy feels like the greatest threat. In reality, piracy may be your path to becoming well known.

In the 1960s, because of a gap between UK and US copyright law, the paperback edition of The Lord of the Rings was not copyrighted in the United States. A publisher put a psychedelic cover on it, printed 100,000 copies, and sold them to college students. That reintroduced the series to a whole new generation. Eventually the rights were sorted out and the book continued under proper copyright. But without those unauthorized copies, it might have faded.

Kelley: It’s a Wonderful Life has a similar story. The film tanked in theaters, and the rights holders didn’t bother renewing the copyright when the time came. Because it entered the public domain, TV networks broadcast it at Christmas for free, and that’s how it became beloved. Then, when it was famous, they realized their mistake. They copyrighted the original short story it was based on and used those derivative rights to assert control over the film again. Technically, the movie is still in the public domain, but the underlying story’s copyright is what’s being enforced.

Thomas: You never know when a copyright could turn out to be surprisingly valuable, especially when derivative rights are involved. There are many options beyond the default, which is doing nothing.

Don’t assume your great-grandchildren will care about your books the way you do. They won’t, and your books can end up dying unnecessarily. A conversation with a knowledgeable attorney opens up ways to structure your will and trust that most authors never consider.

Connect with Kelley Way

KAWayLaw.com

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 JD Rempel, author of Write with the Lord: 40 Quick Quiet Times for Authors, two-minute spiritual power-ups that transform ordinary writing sessions into divine collaborations, reigniting your creative purpose while deepening your relationship with God