I work with a lot of authors. Since I offer both copyright and estate planning services, I am often asked what happens to an author’s copyrights when they die, especially if they don’t have a will or trust. And if you own a copyright, you may also wonder what happens to my copyrights when I die?

The answer is simple for those who do have a will or trust: the copyrights go to whoever you have designated in your will or trust. If your will or trust says nothing about your copyrights, then they are part of the “residue” or “remainder,” i.e., everything you didn’t specifically address. So if you leave everything to your first cousin Bob, that will include your copyrights.

For those who do not have a will or trust, the copyrights are a part of your estate, i.e., everything you own in your own name. Your estate goes to your surviving spouse and children, or if you have neither, then to your heirs at law, which usually means your closest blood relatives. The Probate Code provides guidance on figuring out who your legal heirs are, though I wouldn’t recommend reading through it unless you’re having trouble falling asleep.

Some things to keep in mind here:

If you don’t expressly state who you want to receive your copyrights, then they will be co-owned by all your beneficiaries (or, if there is no will or trust, by your heirs at law). All of them will have equal ownership, meaning they all need to be in agreement to get anything done. That said, some rights can be granted without getting everyone’s permission, so if there’s a rebel in the family, they can cause some chaos, granting nonexclusive licenses and telling the others after the fact. I generally advocate having just one, or possibly two, people in charge of the copyrights to make ongoing management easier for everyone.

In addition, copyrights are considered a “probate-able” asset, which means that, when determining the value of an estate to see if probate is required, the copyrights should be included in that valuation. (At the time of this article, probate is required if the estate is worth more than approximately $180,000.) If a copyright is valuable enough, it is possible that it would trigger a probate of the person’s estate, which is another reason why authors should get their copyrights out of their estates and into a trust or corporation.

If you have more questions about what happens to your copyrights when you die, or if you would like to create a will or trust that includes your copyrights, please feel free to reach out to me at kaway@kawaylaw.com.

Part of my job as a lawyer is answering questions – in fact, a lot of my job is answering questions. As a result, some questions crop up rather frequently. Here are a few frequently asked questions from estate planning clients that you may have wondered about yourself.

What’s the difference between a will and trust? Do I need one or both?

A will tells everyone what happens to your earthly goods when you die and who you want to be in charge of getting them to where you want them to go. A will does not avoid probate but makes the probate process a bit easier.

A trust is considered a legal entity, similar to a corporation. Anything held in trust is not counted as part of your estate, so trust assets can avoid the whole probate process. A trust is also a good vehicle for holding assets over time – for example if you have young children who aren’t ready to inherit just yet.

Everyone could benefit from having a will. A trust is useful to anyone looking to avoid probate or hold assets over time. However, a trust does not replace a will, so while you may have a will and no trust, you should not have a trust with no will.

What is probate?

Probate is the process where the government oversees the administration of your estate. The idea is to ensure that everything goes where you would probably want it to go and no one runs off with your money to the detriment of your loved ones. While the intention is good, in California, the probate process is slow and expensive, so most people prefer to avoid it if possible. It is required if the estate (everything owned in your name) is above about $180,000 (as of the time this article was posted; this amount is subject to change over time). As noted above, assets held in trust are not counted as part of the estate, so holding your assets in trust is an excellent method of avoiding probate.

Who needs an estate plan?

My knee-jerk response is everyone, but then I’m biased. A more nuanced answer is anyone who wants to control what happens to their estate, make sure their loved ones are taken care of, and make things easier for those they’ve left behind. (And yes, I have met people who have no loved ones and don’t care what happens after they’re gone, so they do exist.) This can be accomplished with a will, but I would also recommend a trust for anyone with a net worth of more than $180,000 (to avoid probate), and/or who has young children that can’t inherit right away.

What’s in an estate plan?

I’ve already covered the will and trust above. The advance health care directive and the power of attorney are other documents that would typically be included. The advance health care directive tells your doctors who can make decisions about your care if you can’t do so yourself, and the power of attorney names an agent who can manage your finances and pay your bills if you are unable to do these things yourself.

When should I update my estate plan?

People often want a specific timeline for updating, but in most cases, it’s more about a change in circumstances. There are typically three reasons why it might be a good idea to update:

1. Changes in tax law. Tax laws are constantly in flux, so it’s a good idea to check every so often to see if there’s a change in the Tax Code that would make updating a good idea. For example, in the last decade, the estate tax exemption has gone up significantly, so many people have updated to get rid of clunky trusts that require the formation of multiple sub-trusts to reduce their estate tax liability.
2. Changes in personal circumstances. Anyone who recently married, divorced, had a child, or bought or sold a house should probably update their estate plan to reflect these changes.
3. Changes in preferences. Sometimes nothing has changed but your feelings, and that’s perfectly fine. Your best buddy today may be a distant memory in ten years, or a child you’ve been estranged from may come back and reconnect. It’s a good idea to change things so that people who are no longer in your life aren’t a crucial part of your plan and people who have come into your life have a place at the table.

Is there an answer that you’re looking for that is not among the frequently asked questions in estate planning? Then please feel free to email me at kaway@kawaylaw.com.

I wrote a blog article some time ago explaining the difference between an executor and a trustee and the duties of each position. (If you want to re-read it, you can find it here: https://www.kawaylaw.com/news/executor-and-trustee/)

For those who want to know but would prefer to stick with this article, the short explanation is this: the executor is the person named in the will to deal with the general estate, that is, everything the deceased person (decedent) owned in their own name. The executor’s job is to carry out the terms of the will, pay off any debts, and generally get everything out of the estate in a timely fashion. The trustee is the person named in the trust to deal with the trust estate – in other words, the trustee is only in charge of the assets specifically named as trust assets. The trustee’s job is to carry out the terms of the trust, which usually is to distribute the assets, but can also include holding and managing assets over time (e.g., until the kids are old enough to inherit or perpetually if the child is special needs and can’t manage the assets directly).

Now that we’ve covered what each job entails let’s move on to the real topic of this article: who should you choose for your executor and/or trustee?

Most people pick the same person for both. It makes life simpler, and then no one has to worry about what the difference is or who’s in charge of what. (And to make my life simpler, I’m going to refer to the person as executor/trustee for the rest of the article.)

There’s an ongoing debate over whether it’s better to choose a professional or a relative to be executor/trustee. On the one hand, a professional knows what they’re doing, and they can act as a neutral party that’s not weighed down by years of family drama. On the other hand, a family member knows all the players and their relationships with each other, knows which items have sentimental value, and (you hope) has an emotional attachment to you that makes them want to do right by you. I’m not going to weigh in on which is better because that’s a decision that you have to make for yourself. That being said, your executor/trustee should be trustworthy, good at managing money, and whose appointment will not cause more family drama.

Sometimes people wonder if there’s a problem with choosing a beneficiary as their executor/trustee (for example, one of their children). There is no legal issue with doing so, but it’s important to remember my guideline above. If your child can’t handle money or choosing this child will make your other children angry and resentful, then you’re better off choosing someone else.

Clients will also ask if they can name more than one person to serve together as executor/trustee. Again, there is no legal issue with doing so, but it’s important to remember that the more people you have working together, the more difficult it will be to get anything done. I would not recommend more than three executor/trustees because getting four or more people to agree on everything is almost impossible. In addition, you have to make sure that all your executor/trustees get along and are capable of working together – I’ve heard horror stories of people naming all of their kids (who all hate each other) as executor/trustee, saying, “Well now they’ll have to get along.” It’s much better to save everyone the headaches and legal fees and name a third party that the kids won’t object to.

If you have more questions about choosing an executor vs. trustee, please feel free to email me at kaway@kawaylaw.com.

People talk about intellectual property rights all the time, but what exactly are intellectual property rights? More specifically, what rights do you have to your written materials, i.e. your books, manuals, blog articles, website content etc.?

“Intellectual property” is a broad term that refers to creations of the mind – these are things that you created, which have value and can be bought and sold, but they aren’t something that you can physically touch. The most common types of intellectual property are copyrights (for creative works, like books, movies and artwork), trademarks (for brands you use to sell products and services), and patents (for inventions, formulas, processes, and other creations of a more scientific nature). “Intellectual property rights” means the rights that you, the owner, have over your intellectual property.

So what intellectual property rights do you have over your written works?

The most obvious is copyright – this is the protection for the words that you use in your writing, so others can’t sell bootleg copies of your book or copy and paste your text into their book. Copyright law also prevents others from creating unauthorized sequels, translating your work into other languages, or making a movie from your work without your permission. Copyright law does not protect the ideas or facts contained in your work, but it does give strong protections for how you express those ideas or facts in your writing. You also have protection for any other creative works contained in your writing, such as artwork and pictures, as long as they were created specifically for your work. (If not, never fear, they’re protected under their own separate copyright.)

You may also have trademark rights to your writing, in certain contexts. A single book title cannot be trademarked (or copyrighted), but a series title can be trademarked (e.g. “Harry Potter and the Sorcerer’s Stone” could not be trademarked by itself, but “Harry Potter and the…” could – and almost certainly is). It’s also possible to trademark your name – or pen name, if you’re using one – but this is a bit trickier, since you would need to prove that you’ve gained a certain amount of recognition in the marketplace. There may be other things in your writing that you could use as a trademark, but you would have to build a brand around it so that consumers will see it as a source identifier for the item or service you are selling.

There are other rights and laws that impact your writing, but these are what people are referring to when they talk about “intellectual property rights.” They can provide a lot of protection for your work, when used and implemented properly.

If you have questions about the above, or would like some help protecting your writing, please feel free to email me at kaway@kawaylaw.com. Or, if you’re more of a visual person, you can watch my videos about intellectual property, copyrights and trademarks on YouTube:

What is Intellectual Property: https://youtu.be/VijhjVC59F4

What is Copyright: https://youtu.be/8QihVo_O2uY

What is Trademark: https://youtu.be/QvZIwdGYml0

All right, you have successfully assigned your copyright(s) to your trust (if you haven’t done this yet, please see my previous article on putting a copyright into your trust). Now you want to update your registration with the Copyright Office to show that the copyright is in trust. How do you do that?

The traditional method is to send your copyright assignment to them in the mail, with a cover letter and a list of the assigned copyrights. There is also an electronic submission process, but this is still in the testing phase, so I’ll stick to the traditional method for the purpose of this article.

In order for the Copyright Office to record the transfer, they must receive either the original Assignment of Copyright document or a copy with a certification that it is a true copy of the original. They also have a form that must be filled out and submitted with the assignment, which essentially tells them everything they need to know to update their records, in a format they can easily draw the information from. Lastly, they need the list of copyrights that have been transferred, with the copyright registration numbers included. To make their lives easier, they give you the option of downloading their pre-formatted Excel sheet, filling it out, and submitting it on a thumb drive with your paper documents. As a reward for your pain and suffering (which it will be if you haven’t already created a detailed electronic list of your works), they offer a discount on the filing fee if you include the Excel sheet.

Now I know what you’re thinking. How much is this filing fee, and is there a way I can get out of it?

Since the filing fee changes periodically, I’m not going to give a number here, beyond to say that it is much higher than the initial registration fee. The fee also changes depending on the number of copyrights that are being transferred. When you are assigning your existing copyrights to your trust, there are not really any alternatives to doing it this way. It is cheaper to do them all at once than to record a few assignments at a time.

That being said, you can avoid this situation going forward. If you assign each new copyright to your trust before registering it with the Copyright Office, then you can register the copyright with yourself as the author and the trust as the existing owner. When you fill out the application (online), under “Claimant”, you put the trust information and fill out the Transfer Statement at the bottom of the page. If you have assigned your own copyright to your trust, then you can select “By Written Agreement” from the drop-down menu. If you are administering a trust or estate and transferring the copyright after the author’s death, you can select “By Inheritance.” The filing fee will remain the same.

If the process to update your registration with the copyright office is confusing, or if you just don’t have the time to do this yourself, I’m happy to help. You can reach me at kaway@kawaylaw.com.

A very common question I hear when people sign their trust is, “Do I need to get a tax ID for my trust?” In most cases the answer is no. Let me explain why.

In estate planning, the most common kind of trust is the revocable grantor trust (there are a few other names for it, but let’s go with this one to keep things simple). To translate this into regular English, in the most typical estate planning trust, the person (or couple) creates a trust for their benefit and funds the trust with their own assets (and since they are “granting” their assets to the trust, they are called the “grantor”). This trust can be amended or revoked by the grantor(s) at any time, making it a revocable trust. Hence the name “revocable grantor trust.”

Since the trust can be revoked at any time, the IRS treats the assets that are in trust as if the grantor(s) still owned them in their own name. This means that the grantor(s) have no change whatsoever to their taxes owed. This also means that they do not need a new tax ID for the trust; since assets in trust are treated as if the grantor(s) still own it in their own name, their social security number works as a tax ID.

This is not true of an irrevocable trust (a trust that cannot be revoked). An irrevocable trust is treated as its own entity in the eyes of the law, similar to a corporation. Since an irrevocable trust is its own entity, it needs its own tax ID, and assets in the irrevocable trust will be taxed at the tax rate for trusts.

So when do we deal with irrevocable trusts in estate planning? Most commonly, when the grantor(s) die. Since the grantor(s) are the only ones with the power to amend or revoke their trust, on their death, their trust changes from a revocable trust to an irrevocable trust. Irrevocable trusts also come into play when creating trusts for tax avoidance/reduction purposes (e.g., the QTIP or Bypass Trust) or when creating a Special Needs Trust. In order for these trusts to serve their respective purposes, they have to be irrevocable.

So to summarize, the typical estate planning client only needs to get a new tax ID for their trust when a grantor dies, when they are creating trusts to reduce their taxes, or when creating special trusts like the Special Needs Trust. A typical client just starting their estate plan usually doesn’t need to worry about it.

If you have questions about this article, or you are wondering if your trust needs its own tax ID, please feel free to reach out to me at kaway@kawaylaw.com.

I hope everyone is enjoying the holiday season. In keeping with tradition, this final blog post of the year highlights the blog articles that got the most attention this past year. I hope you enjoy this trip down Memory Lane!

Top blog posts for 2022

1. How Do I Put a Copyright Into My Trust? (link: https://www.kawaylaw.com/news/how-do-i-put-a-copyright-into-my-trust/)
2. Celebrity Horror Stories (link: https://www.kawaylaw.com/news/celebrity-horror-stories/)
3. Step-Up in Basis: Inheriting Property from Parents (link: https://www.kawaylaw.com/news/step-up-in-basis-what-happens-if-i-inherit-property-from-parents/)
4. Who Should I Choose for My Executor/Trustee? (link: https://www.kawaylaw.com/news/who-should-i-choose-for-my-executortrustee/)
5. Should You Put Your Copyright in a Trust or LLC? (link: https://www.kawaylaw.com/news/should-you-put-your-copyright-in-a-trust-or-llc/)
6. De Minimis Use in Copyright Law (link: https://www.kawaylaw.com/news/de-minimis-use-in-copyright-law/)
7. The Differences Between Per Stirpes and Per Capita (link: https://www.kawaylaw.com/news/the-differences-between-per-stirpes-and-per-capita/)
8. I’ve Inherited a Copyright, Now What? (link: https://www.kawaylaw.com/news/ive-inherited-a-copyright-now-what/)
9. Can I Use a Trademark in My Book? (link: https://www.kawaylaw.com/news/use-a-trademark-in-my-book/)
10. When Can I Use Someone Else’s Material in My Writing? (link: https://www.kawaylaw.com/news/what-is-fair-use/)

And for those who are interested, I also looked up my most popular blog posts of all time. It was interesting to see which articles got the most views.

Top blog posts of all time

1. How Do I Put a Copyright Into My Trust? (link: https://www.kawaylaw.com/news/how-do-i-put-a-copyright-into-my-trust/)
2. Celebrity Horror Stories (link: https://www.kawaylaw.com/news/celebrity-horror-stories/)
3. Step-Up in Basis: Inheriting Property from Parents (link: https://www.kawaylaw.com/news/step-up-in-basis-what-happens-if-i-inherit-property-from-parents/)
4. Who Should I Choose for My Executor/Trustee? (link: https://www.kawaylaw.com/news/who-should-i-choose-for-my-executortrustee/)
5. What’s the Difference Between an Executor and a Trustee? (link: https://www.kawaylaw.com/news/executor-and-trustee/)
6. The Work-for-hire doctrine – When Is My Work Really My Work? (link: https://www.kawaylaw.com/news/the-work-for-hire-doctrine/)
7. Wills vs. Trusts – What’s the Difference? (link: https://www.kawaylaw.com/news/wills-vs-trusts/)
8. Should You Put Your Copyright in a Trust or LLC? (link: https://www.kawaylaw.com/news/should-you-put-your-copyright-in-a-trust-or-llc/)
9. When Can I Use Someone Else’s Material in My Writing? (link: https://www.kawaylaw.com/news/what-is-fair-use/)
10. I’m a Trustee; Now What? (link: https://www.kawaylaw.com/news/im-a-trustee-now-what/

Thank you for reading my blog, I hope you enjoyed the top blog posts of 2022. Do you have a question about a copyright or trademark situation? Or would you like an estate plan review in the new year? Feel free to email me at kaway@kawaylaw.com to schedule a consultation and get your questions answered.

I have been contacted on multiple occasions by prospective clients who learned after a loved one’s death that they would inherit nothing from the deceased person (decedent). This can be a very painful discovery, particularly if the decedent and the prospect were spouses or close family members. Not surprisingly, the prospect wants to inherit what they feel they are owed. So, what to do when you’ve been disinherited?

It’s important to remember that the government does not recognize a legal right to an inheritance. As a general rule, a person can leave their estate to whoever they want. If they wish to disinherit their child or donate to the Nazi Party, they are free to do so, and the government will uphold their wishes. There are some limited exceptions to this rule.

1. The omitted child/spouse rule. The government assumes that you want to leave your estate to your spouse and children, unless you have a will or trust that says otherwise. So, if you get married or have a child after creating a will and trust, it’s assumed that you would have included them had they existed at the time the estate plan was created. This rule extends to children who were born before the will and trust were created, but the parent (*cough* father *cough*) wasn’t aware of their existence until after they had completed the estate plan. If the child can show the court that their parent wasn’t aware of their existence at the time they created their will and trust, and would have included them if the parent had known about them, the court will give them a share of the estate. The same rule holds for a surviving spouse who wasn’t married to the decedent at the time their will and trust were created. However, if the will and trust specifically state that the decedent is intentionally disinheriting the child or spouse, then this option won’t work.
2. Fraud. The court will not uphold a will or trust if it can be proven that the will or trust is fraudulent. Classic examples are forged signatures or altering the contents of the document after it’s been signed. There are experts whose entire job is to spot this sort of activity on legal documents. It’s also why it’s so important to have the original; fraud is much harder to spot on a copy.
3. Undue influence. If the decedent was pressured into signing the estate plan and it does not actually reflect their wishes, the court will not uphold it. Undue influence can be difficult to prove, so you would need to gather quite a bit of evidence to convince the court that this is what happened. Please see my previous article for more information on undue influence and how to spot it while there’s still time to act.
4. Lack of capacity. A person has to have legal capacity in order to sign a will and trust. If they are not of sound mind, then they can’t be trusted to understand what they are signing or what the impact of those documents will be. As with undue influence, lack of capacity can be difficult to prove, so if you don’t have a doctor’s evaluation, you’ll have to gather evidence that the decedent did not have the mental ability to understand what they were doing. Please see my previous article for more information on lack of capacity and how to spot it.

These are the major reasons a court will accept for overturning a will or trust. While there are some other possible arguments out there, it will be much more difficult to succeed if you can’t prove one of the above.

If you have questions or would like more information about what to do when you’ve been disinherited, please contact me at kaway@kawaylaw.com.

My sister inspired this blog article when she noticed a trend in the knitting world.  She saw several social media posts where knitters saw a design they liked, reverse-engineered it, and then gave away the pattern or offered it for sale. She asked me about the legality of this practice, and it reminded me of stories I heard from marketing teams, where they would copy pictures or artwork off the Internet. Then, if someone pointed out this was problematic, they would recreate the design themselves and declare it non-infringing.

Unfortunately, this is not how copyright works. Copyright law protects a work from being copied without permission; the fact that the picture or design is on the Internet does not mean it is free for anyone to use. Copyright also protects against the creation of derivative works, which are works that are based on the original. Even if you change some details (or a lot of details), drawing a recreation of an existing work qualifies as a derivative work and therefore infringes on the original’s copyright. The same holds true if you simply modify or crop an existing picture.

So does this mean you can never use an existing work? Not necessarily. Here are some times when you might be okay:

1. The work is not copyrighted. If it doesn’t have a copyright, then your use is not infringing. Older works (pre-1927) and certain government works (e.g. Hubbell telescope photos) are not protected by copyright and can be freely used.
2. You have permission. While it can be challenging to reach out and ask for permission, many sites let you use or modify photos and art with a blanket subscription or, in some cases, for free (just make sure the site got permission from the author first). Search browsers also have filters that will only show photos that have been licensed for reuse.
3. Fair use applies. This one is the trickiest and the most risky. Certain uses (e.g. education, news reporting or commentary) are presumably fair use, but that’s not a guarantee that your specific use is okay. A good rule of thumb is asking, “Will this hurt the original’s sales?” While this is not the only factor the courts will consider, it is an important one, and will also impact the likelihood of the copyright owner coming after you. Another option is to change it so drastically that it’s not really comparable to the original, but this move is a lot riskier and the lower courts are less likely to rule in your favor.

When in doubt, it’s best to either get permission (in writing) or have a lawyer run a risk analysis for you. It’s not worth the potential lawsuit to just assume that you’ll be okay.

If you have questions, want to know, “Can I reverse-engineer this design?”, or if you just want to know if your use is okay, don’t hesitate to contact me at kaway@kawaylaw.com.

Estate Administration Basics: What To Do After a Loved One Dies

Losing a loved one is one of the most emotional times a person can go through. Dealing with their material possessions (i.e. the estate) shouldn’t be an additional burden, but it frequently is. Most people have no idea where to begin the process of sorting through accounts and belongings.

When I meet with clients regarding estate issues, I have a checklist that I go through with them. The following list isn’t everything I go over, but it will give you some important steps to consider:

1. First things first. Some things need to be taken care of immediately, with the most obvious example being pets. Pets should not be left alone in an empty house. Someone needs to make sure they are taken to a new home, and that they don’t go hungry in the meantime. You should also notify Social Security and any other income source that stops on death – any payment received after death will need to be returned.
2. Find the will and trust. The next priority is finding the will and/or trust if the person had them. These documents tell everyone who is in charge, so little can be done without them. They will also tell everyone what should happen to the estate, which will make life easier for whoever is in charge.
3. Update the title on the assets. Dead people can’t own anything, so the person in charge will have to change the name on the bank accounts, real property, and other assets the person owned. This is pretty straightforward if there is a will and trust; without these, the title can only be changed with an Affidavit of Small Estate (if the estate is worth less than $180,000) or with Letters of Administration from the Probate Court (if the estate is worth more than $180,000).
4. Pay off bills, debts, and the IRS. Nothing can be distributed until all debts are paid. This includes the government, which still wants whatever taxes are owed to be paid on time. However, the final income tax return can be submitted up to nine months after the date of death.
5. Distribute assets. This process is fairly simple with a will and trust – you simply follow the directions given in the documents. Without these, assets will go to the deceased person’s legal heirs, as determined by the Probate Code. In addition, if the estate is going through probate, you’ll need permission from the Probate Court before making any distributions.

My checklist is a bit longer and more detailed, but this gives you a 50,000-foot overview of the process of what to do after a loved one dies. If you would like a more thorough overview or have questions about an estate, please feel free to email me at kaway@kawaylaw.com.