I drew up my first Will and Power of Attorney when I was twenty-eight. Not because I expected to die but because I wanted to be sure my wishes were carried out. As a lesbian, I didn’t want family members to be responsible for my creative work. Not because they are terrible people, but because they would be clueless about its value, about possible venues for making it public, and because they would be embarrassed, if not scandalized, by the content. If they were left in charge, I knew, my writing would end up in a box in the basement or in the trash can.
In the late 1980s and 90s, I taught a writing workshop for people with HIV and AIDS. These were the years before the “cocktail” made survival more possible. Many of the writers I worked with were sure they would die, and many did. While some workshop members were just looking for a creative outlet, several were serious about their work; they were publishing or working toward that. Some were already creating legal documents designating health care preferences and end-of-life decisions, and naming a literary executor.
Even specifying your wishes can have its limitations. One writer had left some money to have a collection of his poetry edited and printed, but left his family ultimately in charge of his estate. His sister contacted me, and I edited the work, hired a designer for the cover, and printed 500 copies. I arranged a public reading and enlisted local writers to read his work. I outlined a series of steps for them to take to get the book distributed to other LGBTQ bookstores, to libraries, and to publications that might review the work. But the effort stopped there. Whatever books did not sell at that initial event are, I’m sure, in a box in the attic or have already been disposed of. Not because his family didn’t want to carry out his wishes; they were consumed by their own grief and loss, and knew next to nothing about poetry, the HIV/AIDS community, or what this book might mean to others, even those who had never met the poet.
This is not only an issue with the LGBTQ community. For a few years, I worked with a student who’d been diagnosed with cancer and given a very short prognosis. But he refused the recommended treatment and lived years beyond the doctors’ expectations. During that time, he started writing a book, a memoir about dying, about not following the doctors’ protocols, about finding a richness to life such as he had never known before. His voice was bold and humorous, his declarations provoking and his research meticulous. He asked me to help him finish the book, and I tried to put him on a timeline that would allow him to see the finished product, hold it in his hands before he died. As that time grew nearer, he chose to travel and have more experiences, rather than writing; I don’t blame him. He died with the book unfinished, but close enough that it could be edited and published. One of his friends told me that he left some money for me to do that, but his family is in charge of his entire estate, including his literary output. They’ve never contacted me.
We need these provisions not only for after we die, but in case we become unable to manage our own affairs while still alive. I’ve been thinking about this a lot because a former mentor and friend of mine was consigned to an assisted living facility when she became unable to care for herself. A visual artist, she produced paintings and sculpture and two movies, as well as lots of documentation of her life and her community. I recently found an archive that agreed to take the documentation and ensure that others would continue to appreciate her artistry and her legacy. However, I learned that the family member who had been designated to hold on to the artwork had disposed of almost all of it, as well as the documentation. They could not appreciate the value of my friend’s life’s work.
Periodically, I talk to students about this issue; it’s a hard conversation to introduce, because none of us likes to think we are going to die. But if you are a writer or artist and you care about your work surviving you, it’s essential to consider it.
- First you want to think carefully about whom you designate to be your literary or artistic executor. Ideally it is someone who 1) cares about you and really appreciates your work and 2) someone who is familiar with the professional world of that art form. For me that means someone who understands the publishing process, from submitting to contracting, someone who has an understanding of the audience my work is intending to reach, and ideally who has some contacts in that literary world. As much as I love my mentor/friend and admire her work, I was not in a good position to help with placing her work for exhibition, because I don’t have those contacts in the visual arts world.
- It’s ideal to designate two different people, in case one of them becomes unable to carry out the task. It’s good to have an alternate.
- Once you identify those people, you’ll want to have a detailed conversation with them about what it is you want them to do (Try to get unpublished things published? Oversee the fate of works that are already in print? Handle inquiries for reprinting or other literary business?) If someone is hesitant, don’t push them. You want people who will really follow through on what they’ve promised.
- Then you’ll need to set up a legal document that designates these individuals as your literary or artistic executor and alternate. This can typically be a provision in your Will; it doesn’t have to be a separate document. You are not required to hire an attorney to produce your Will, but if you have the means, it’s helpful. If not, there is a lot of information available online about how to write your own Will; be sure to search for the provisions particular to the state where you live. LegalZoom.com provides some relatively low-cost options. You will need to have your Will notarized and signed by witnesses.
- If possible, try to leave your literary/artistic executor enough money to do what you want them to do, whether that comes from your estate or from the future publication or sale of your work (although not all publication produces income). The terms of this provision can also be spelled out in your Will.
- Make it easy for your executor to carry out their tasks. Keep your files organized (whether digital or hard copies.) Date your drafts, so someone can identify the latest version of a work. Update your resumé or CV, so it’s clear which works have been published. Check in with your designees periodically so they know what you are working on now, what’s complete, what’s in progress, what you’re excited about. Sometimes as writers we get used to working alone, and it’s hard to share information about our process, but if someone is going to be your representative, they will need to know about your work.
- Be prepared to revisit this issue every 5-10 years. Do the individuals you’ve designated still seem like the right people for the job?
Understand that if you do not specify an executor, the legal default will be your closest living relative. That might be the brother you adore, but it might end up being a distant cousin you’ve never met. If no relative can be located, the state takes possession of your estate.
I’ve heard writers say, “After I’m dead, I won’t care what happens to my work,” and that’s a reasonable attitude. But if you do care, if you want people in the future to read your writing or appreciate your artwork, then figuring out who will help you do that is an important step to take.
Text by Terry Wolverton
Photo by Yvonne M. Estrada
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