Paul O. Dillon, Attorney at Law

Estate Planning for Creators, Artists and Writers

There is no shortage of articles about legal battles over the control of famous artists’ works and their estates. There are many lesser-known artists, including content creators, graphic designers, photographers and others in creative fields, who should consider pointers in a recent article from New York State Bar News, “Estate Planning for Artists: How to Plan and Protect Your Legacy,” about protecting their legacies.

The creative person’s estate includes original works of art. However, it also includes intellectual property, copyrights, trademarks and the rights to derivative works. For instance, an artist who sells artwork on the popular Redbubble website maintains ownership of their art. However, they still need to protect their art and their estate.

Artists often own studios or businesses to manage their works and rights. Their estate plan should be drafted by an experienced estate planning attorney who understands the value of their creative property, as well as the studio or business assets.

Copyrights last for the life of the author plus an additional 70 years, so an estate plan needs to address the intellectual property ownership of the artist during their lifetime and after death. New revenue-generating opportunities may emerge after the artist’s death, even if it seems unlikely while they are alive. Elvis Presley could be said to be more popular now than he was during his lifetime. While this is an extreme example, many artists are recognized only after they have passed away.

The artist should ensure that they name an executor who shares their passion for their art, as well as possesses the skills to manage their creative legacy and administer their estate. It’s wise to name a successor in case the primary executor is unable to serve in this role when the artist dies.

Having a plan for communication is advantageous for creative and “regular” estates. If multiple family members need to sign off on something, such as if a copyright comes into possession of more than one heir, getting everyone together to review and agree on a document can be challenging.

To enforce intellectual property rights, artworks must be registered with the U.S. Copyright Office. Doing this on an ongoing basis while the artist is alive will make it easier for heirs to defend the estate. If this is not done during the artist’s lifetime, it will be challenging, if not impossible, to do so when the artist is incapacitated or after they’ve died.

Contracts, consignments, sales, gifts and loans must be drafted to include intellectual property rights as narrowly as possible. The records of these transactions must be maintained even after the contract has been concluded to document the license. The records may also be useful for heirs to locate or determine ownership of physical artwork.

If the artist has a prenuptial or postnuptial agreement, it may include language concerning the retention of intellectual property rights by the artist in the event of a divorce. Joint ownership of artwork with a hostile ex-spouse can be as difficult as outright theft to an artist’s legacy management.

Careful record-keeping may not be a creative person’s favorite activity. However, using and retaining detailed records will be worthwhile for both the artist and the estate. Inventories of completed work, documenting intentions for incomplete artwork or artwork the artist doesn’t wish to release, as well as gifts or exchanges with other artists, and information about digital records, along with instructions on how to access them, will make the executor’s job easier.

Dying intestate, or without a will, is never a good idea, especially when there are multiple heirs. If a person dies without a will and there is property in their estate that has not been disposed of under a trust, an administration proceeding must be filed, and the property will be distributed according to the state’s laws. For an artist, this can undermine the management of their work and lead to a loss of control over their intellectual property. The artwork could go to people who don’t care about it or don’t know how to manage it.

An estate plan is as essential for the creative person as it is for someone who can’t draw a stick figure. Having a will, trust, power of attorney and healthcare documents protects individuals, their families and their legacies.

Reference: New York State Bar News (March 6, 2026) “Estate Planning for Artists: How To Plan and Protect Your Legacy”

How Estate Plan Protects Your Family

Estate planning is one of many ways to make a difference to your family’s future. Whether starting from scratch or revising a will created many years ago, your estate plan gives you control over your assets and secures your loved ones. The title of a recent article from Florida Today says it all: “Your family’s future is important to you. These estate-planning tips can help secure it.”

If you don’t have a will, get started on this part right away. A will outlines how you want assets to be distributed upon your death. Without one, the probate court in your jurisdiction will determine who receives your property, and while you may not be around to see the results, your family will. If you have a will but haven’t reviewed it in a while, you’ll want to know if it still makes sense for you. Life is all about changes, good and bad, and your will should reflect your current life.

Living trusts keep assets in the family and pass from one person to the next without court involvement. Property owned by a trust goes directly to the beneficiaries without going through the probate process. Even better, trusts are used to appoint a trustee who will manage the assets if you become incapacitated. A trust works while you are living and after you have died. Families with significant assets, blended families and anyone looking for a smooth way to pass assets to loved ones rely on trusts.

People underestimate the importance of a Power of Attorney. A durable power of attorney gives a person of your choosing the legal authority to act on your behalf in financial matters. If you are too sick to pay bills or manage investments, an agent (the person named in the POA) can act on your behalf. Without this document, your family must petition the court to appoint someone to manage your life. The court has no obligation to name a family member or even someone you know to oversee your life. It’s far better to simply have an estate planning attorney create a POA suited to your needs.

You’ll also want an advance healthcare directive, sometimes called a living will, to express your wishes for healthcare in case you can’t. This document includes your wishes regarding life-sustaining treatments, organ donation and end-of-life care. The healthcare directive serves two critical purposes: it allows you to state your wishes and spares your family from not knowing what you want during a healthcare crisis. An emergency is no time for your children to guess what Mom wants.

Beneficiary designations are used in many financial accounts to allow the asset to go directly from the original owner to the beneficiary without going through probate. Beneficiary designations override your will. If you want your nephew to inherit your IRA but your IRA’s beneficiary designation is your spouse, your nephew gets nothing. People who have been divorced need to be extra careful about making sure their beneficiary designations are updated.

Parents of minor children must designate a legal guardian in their estate plan. Establishing a trust to own an inheritance for healthcare, education and living expenses ensures that their guardian will have funds to care for the children. Minors may not inherit property, so making a trust is the best way to protect and control their inheritance.

An estate plan, including a will, power of attorney, healthcare directive and trusts, is central to protecting your family and their future. An experienced estate planning attorney will help identify your concerns and know how to address them in a legally enforceable manner.

Reference: Florida Today (Feb. 8, 2025) “Your family’s future is important to you. These estate-planning tips can help secure it.”

Should Your Estate Plan Include a Trust?

Estate planning is like getting an oil change for your car or going to the dentist. There are other things you’d rather be doing. However, you know these are things you must do to avoid far more expensive problems later on. Estate plans are personalized, based on your needs and situation. One strategy you may want to consider is a living trust, as explained in a recent article from MSN, “3 Reasons to Seriously Consider Using a Living Trust to Pass an Inheritance to Your Family.”

One of the reasons for having a living trust is to avoid the probate process. This is a legal process where a court decides if the will is valid, approves the executor and oversees the distribution of assets left through the last will and testament. If a person owns property in multiple states, probate must take place in each state. Probate can take months or, in the case of complicated estates, years. A living trust distributes assets to beneficiaries without the court's involvement.

Passing assets through trusts provides more privacy than going through a will and, hence, through probate. When a will goes through the probate process, it becomes a public document, and anyone can read it. This means your will could be read by disgruntled family members, creditors, an ex-spouse, or thieves looking for victims.

Details about a living trust, including assets, beneficiaries and terms of the trust, aren’t part of the public record. This is useful for two reasons—avoiding potential conflicts with those who did and those who did not receive inheritances and shielding recipients from potential scammers. Sadly, there are numerous cases of families who fought bitterly over inheritances after they obtained the will from the local courthouse.

Living trusts offer a great deal of flexibility. They can be modified in any way desired by the grantor (the person creating the trust) if they are living. The trust can be modified to reflect life events like marriage, divorce, death, or financial changes. Having the ability to make these changes works well for those concerned with aligning their wishes with their estate plan.

One final note: when you create a trust, you must place assets in the trust to fund it. This usually occurs by retitling the asset to be owned by the trust and not by the grantor. Your estate planning attorney can help make sure you do this last step. Failing to fund the trust is critical for it to perform as you want.

Discuss your overall estate plan with your estate planning attorney. There are many different types of trusts. The attorney will be able to help you decide which one is best suited for you. You’ll also want to be sure any trusts created align with your estate plan.

Reference: MSN (Feb. 3, 2025) “3 Reasons to Seriously Consider Using a Living Trust to Pass an Inheritance to Your Family”

What are Best Practices for Estate Planning?

You’ll be able to avoid common problems and have a more effective estate plan by being mindful of some simple but important details, according to a recent article, “7 Estate Planning Best Practices,” from Kiplinger.

Name more than one person for essential roles in your estate plan. An executor is the person who will carry out the instructions in your will. What happens if they cannot serve or decide they don’t want to? Always make sure to name an executor and a successor executor. The same is true for your Power of Attorney, Healthcare Agent, and, if you have a Revocable Trust, your successor trustee. If most of the important people in your estate plan are around the same age as you, it’s wise to name younger people as backups.

Talk with your loved ones about where your estate planning documents can be found, including how to access them. They’ll need to be able to find them, for starters, and then learn how to open them if they are in a secure location. Don’t surprise loved ones by adding turmoil to their grief.

Talking about your estate plan includes talking about the intentions behind the estate plan. You may wish to create a letter of intention, explaining your reasoning behind the estate plan. It’s not legally enforceable, but it might preclude ambiguity and possibly prevent family disputes. If you don’t, you add the possibility of family fights, litigation and even the dissolution of family relationships over the generations. People fight about money, whether we like to acknowledge this or not.

Work with an experienced estate planning attorney who knows your state’s laws. Estate planning laws are state-specific, and someone who is a terrific attorney in Colorado won’t necessarily know the law of Texas. If you move to a different state, you’ll also need to update documents to be sure they will work in your new home.

If you’re a pet owner, don’t neglect planning for your pets. Your will can include a provision about caring for your pets and include a bequest to care for your pets. However, this is not enforceable. On the other hand, a pet trust can name a trustee to manage the funds for the pet’s benefit and name a person to serve as a caretaker.

Don’t wait until a medical emergency to give your healthcare providers copies of relevant estate planning documents. Ask your estate planning attorney and your doctor about giving your healthcare team documents like a living will, power of healthcare attorney, living will and other related documents. Most healthcare systems today have patient information portals where they can be stored.

Did you create a trust but haven’t yet funded it? If you don’t retitle your assets so they are inside of the trust, your trust won’t perform as intended. This last step has to happen for the trust to be effective.

Review your estate plan on a regular basis. Most estate planning attorneys recommend reviewing an estate plan every three to five years, and more often if there have been large “trigger” events like marriage, divorce, death, or birth. If you move to a new state, you’ll also need a review to be sure your estate is still valid in the new state.

Your estate is like your car: without regular maintenance, it will not perform well and, over time, will stop running. Call your estate planning attorney to make sure that your documents are in order for the new year.

Reference: Kiplinger (Jan. 6, 2025) “7 Estate Planning Best Practices”

Money Tips for the Coming Year

A fresh start for 2025 should include your financial life and your health and wellness resolutions. A recent article from USA Today, “Start 2025 off right with these 9 money moves,” offers good suggestions to make this new year a good one.

Get out of debt. If you have high-interest debt and high-earning investments, you’re only treading water and not getting ahead. Take care of the high-interest debt first if you want to see your net worth grow.

Try living below your means. Too many of us spend more than we bring in and then try to catch up (See “Get out of debt” above). The more significant the difference between what you earn and spend, the better your savings accounts will grow. If you’re saving for retirement and your kid’s education, changing spending from what you want to what you need will help.

Build an emergency fund. Unless you are lucky enough to have untapped wealth, you need an emergency fund in cash ready to pay for at least three months of non-negotiable expenses. This means taxes, housing, food, transportation, medical expenses, etc. Few people are ready to deal with the economic impact of losing a job, having to replace a car, or needing major surgery. Having an emergency fund protects you from needing to use retirement funds or take on debt to deal with a short-term financial crisis.

Revaluate your portfolio. Investing in great companies for the long haul is how most people set their investment portfolios. However, it makes sense to look at a rebalance every now and then. People who are in their high-earning years may be okay with a 60/40 split between stocks and bonds. However, as you get closer to retirement, you may want to change this. After a few years, when stocks grow faster than bonds, your 60/40 split from a few years ago might have become an 80/20 split.

Maximize retirement accounts. If you can make use of tax-advantaged retirement funds, your future self will thank you. Use IRAs and 401(k)s to build long term wealth. If your company has a matching program, make sure to maximize your contributions using what is essentially free money. Your retirement withdrawals will be tax-free, if you can use a Roth account and pay taxes when you make contributions.

Check beneficiary designations. Make a list of all the financial accounts with beneficiary designations and check to see if the people you named to receive the assets on your death are still the right people. This is especially true if you’ve gone through a divorce, moved, or married.

Get your estate planning documents in order. If you don’t have a will, durable power of attorney, healthcare power of attorney, living will, or advanced directive, make an appointment with an estate planning attorney now to get these documents in order. If you have these documents but they are more than four years old, you’ll want to update them to be sure they still reflect your wishes. If you have young children, be sure your will includes naming a guardian.

Celebrate the New Year by organizing your estate planning and financial life. Next year at this time, you’ll be glad you did.

Reference: USA Today (Jan. 5, 2025) “Start 2025 off right with these 9 money moves”

Discussing Estate Planning in the Holiday Season

With so many families living in distant states, the holiday season is often the only time everyone is together. A family gathering can provide a chance to talk about major life changes and plans for the future, including estate planning issues. It can be tricky to navigate. However, some conversations are simply better in person. A recent article from Independent Record, “How to tackle estate planning with loved ones this holiday season” outlines topics to cover.

Beneficiary Designations. Upon opening savings, investment and retirement accounts, an option is usually provided to name a beneficiary. This tells the financial institution who is to receive the asset upon the owner's death, similar to how a beneficiary is named on a life insurance policy. There are often contingent beneficiaries if the primary has died or does not want to receive the assets.

Beneficiary designations should be checked every few years and when certain triggering life events occur, like death, divorce, or marriage. Some financial institutions have default beneficiary designations, so the owner should also have this information. The beneficiary receives these assets outside of the will, avoiding probate in most cases. Tax treatments of these instruments may differ, so they should be reviewed with an estate planning attorney to see how they work with the estate plan.

Power of Attorney. The POA is a document allowing an individual to name someone to make decisions on their behalf if they are incapacitated. This document should be discussed with the chosen person, usually a spouse, adult child, trusted friend, or an estate planning attorney, with their consent. If there are issues with family members, a non-family member may be a better choice.

There are different types of POA. A durable POA takes effect immediately and doesn’t expire. A non-durable POA is valid for only a specific period of time. The healthcare POA, also known as a healthcare proxy, is also needed for another person to be involved in medical care: spouses are not automatically given these rights. A HIPAA release form should also be in place, so the POA can talk with doctors and others involved in medical care.

Wills and Trusts. If there is no will, the person’s assets are distributed according to the laws of the state, which, in most cases, is decided based on kinship. Most people opt to have a will to decide how their assets are distributed.

Trusts establish a separate legal entity managed by a trustee, who also oversees distribution at the time indicated in the language of the trust. Unlike a will, assets in a trust are distributed privately and outside the court system, meaning they don’t pass through probate. An experienced estate planning attorney creates a trust to meet the specific needs of the grantor.

It’s a good idea to talk about these issues while the family members are well and able to discuss them with a clear head. An estate planning attorney will help with guidance and could also help figure out how to navigate issues when potential conflict exists. During and after the holiday season, estate planning protects loved ones and ensures that wishes are followed.

Reference: Independent Record (Nov. 25, 2024) “How to tackle estate planning with loved ones this holiday season”

Planning to Protect Your Children’s Inheritance: Asset Protection

No one likes to think about the possibility of losing a lifetime of earnings through unfortunate events like divorce, spendthrift heirs, or litigation. However, ignoring these risks won’t prevent them. A recent article from Kiplinger, “Want Your Kids to Inherit? You Need an Asset Protection Plan, ” explains several asset protection strategies used to protect wealth from disappearing in nefarious ways.

Prenuptial agreements aren’t the most welcoming topic when your adult child announces their engagement. Still, this should be discussed and encouraged no matter how much you love your prospective new family member. A prenuptial agreement or prenup is a contract between two adults agreeing on how they will distribute assets in case of divorce. This legally binding document addresses assets, debts, spousal support, alimony, gifts and inheritances. It’s also helpful as a supporting document if one of the spouses should die unexpectedly. However, the couple should have a will, power of attorney and other estate planning documents created as soon as they are married.

Depending on the state, there may be laws concerning when the prenup is signed for it to be valid. Signing a prenup under duress could make it invalid, so this needs to be addressed in a timely manner.

Another option is to create a postnuptial agreement (postnup). Spouses may contractually agree to terms outlining the distribution of assets in the event of a divorce after the wedding.

Asset protection includes determining and formalizing how assets will be passed on to heirs. Parents should consider creating trusts as part of their estate plan. Trusts allow grantors (the person creating the trust) a much higher degree of control over who receives the assets in the trust and takes them out of the probate estate.

For example, the trust may call for a beneficiary to receive a portion of their inheritance at ages 30 and 40 and the balance at age 50. An heir with a drug dependency might be required to complete a rehabilitation program or maintain employment over a steady period of time before the trustee can distribute some or all of the assets in the trust.

If assets are left through a will, a number of vulnerabilities are created. First, they are part of the probate estate and subject to federal and state taxes. Second, the will becomes a public document when it goes through probate, so creditors can learn if someone is receiving an inheritance. Creditors may include ex-spouses, credit card companies and financial institutions.

An experienced estate planning attorney is familiar with the tools used to protect assets and ensure that they pass to the next generation according to your wishes. Protecting a lifetime of hard work is a worthy endeavor, creating a legacy and providing security for those you love.

Reference: Kiplinger (Nov. 9, 2024) “Want Your Kids to Inherit? You Need an Asset Protection Plan”

How Professionals Use Estate Planning

Estate planning encompasses many aspects of an individual’s life, including asset management, wealth transfer and tax planning. With the help of an experienced estate planning attorney, a secure financial future and protection for loved ones can be accomplished. A recent article from mondaq, “Estate Planning for Professionals” provides useful details.

Estate planning includes protecting personal assets from creditors. The tools most often used include trusts, retirement accounts and insurance. Which type of trust is needed depends upon each person’s circumstances and should be tailored to meet your needs. Available trusts include gift trusts, revocable trusts, marital trusts, trusts to benefit children and special needs trusts, to name a few. Trusts also transfer business assets out of direct ownership while minimizing estate taxes.

Retirement accounts, including IRAs, are considered savings vehicles but serve other purposes. Certain retirement accounts include ERISA spendthrift protections, which also allow unlimited accumulation free from creditor claims while protecting someone from taking too much out of their account. ERISA, a federal law, does not protect IRAs, so any protection for the IRA is state-specific. In some states, assets in IRA and Roth IRAs are protected from creditors in case of bankruptcy.

Business owners are often advised to use LLCs and corporations to protect assets from creditors. However, the entity used depends upon the nature of the business and the owner’s circumstances. Keeping business and personal assets separate is a foundation of estate planning, which should also incorporate retirement and succession planning.

Succession planning should be done as soon as a business reaches a certain level of stability and success. If family members are part of the business, assigning key roles, clarifying responsibilities and planning for how ownership will transfer when the founding owners decide to retire or if they die while still operating the business needs to be in place. How the business will be transferred, which can occur in many different ways, must be clarified.

Divorce is an unpleasant fact of life for many families. Protecting assets must be weighed along with maintaining relationships, particularly where children are involved. A pre-nuptial agreement for the professional or business owner should be part of planning for marriage. Drafting the document when the relationship is good can clarify issues and hopefully preclude some acrimony if the marriage doesn’t go well.

An estate plan requires time to prepare, as documents including a last will and testament, power of attorney, healthcare power of attorney, advanced directives and trusts all require careful drafting. Any estate plan must be reviewed every few years to ensure its efficacy.

Reference: mondaq (Oct. 18, 2024) “Estate Planning for Professionals”

It’s Not Too Soon for Generation X to Start Estate Planning

Adults born between 1965 and 1980 are often called the “sandwich generation” as they sometimes support older children who are still figuring out who they want to be when they grow up and caring for aging parents. While retirement may feel far away, says a recent article from Kiplinger, “Come as You Are: Wealth Management for Gen X,” it’s on the horizon, and planning for the future should start now.

Some of the tools used for retirement planning include 401(k) plans, which are tax-deferred plans from an employer. If your employer offers matching funds, try to contribute enough to take advantage of the match. You can also use a personal IRA to make tax-free annual contributions.

With changes from the SECURE 2.0 Act, you can open and contribute to a 529 College Savings Account and then roll a portion of unused funds into a Roth IRA once the account has been opened for 15 years and the funds have been in the account for at least five years. There are rollover limits, but this might be a good fit for retirement savings. Commonly, 529 funds are used for various educational purposes, so even if your children are past college, your grandchildren might use them for private school, not just college.

The one constant in life is change, and estate planning documents created when your children were little need to be reviewed and possibly updated. If the last time you thought about your will was when your adult children were born, you should schedule a review with your estate planning attorney. Changes like marriage, divorce, death, financial ups and downs and changes in the tax law all call for updates to wills.

If you don’t have long-term care insurance, now is the time, while you’re still relatively young and healthy enough to be able to buy it. Insurance companies now offer hybrid policies combining life insurance with a long-term care insurance policy rider.

Digital assets are a relatively new asset class requiring estate planning. Speak with your estate planning attorney to be sure your estate plan documents reflect your digital life. If you are active on social media, investing in cryptocurrency, or own an online business, you have digital assets and need to protect them.

Be proactive about estate planning to protect yourself now and your loved ones after you’ve passed. Just as retirement is on the horizon, so are the inevitable events of aging. Make an appointment to see an estate planning attorney to learn your needs, now and in the future.

Reference: Kiplinger (Oct. 7, 2024) “Come as You Are: Wealth Management for Gen X”

How Can a Will Be Changed?

A last will and testament is a legal document that distributes assets, including investments, real estate and personal property after death. Once a will has been signed and executed, it becomes the foundation for an estate plan. However, what happens if you want to make changes? This is the topic addressed in a recent article from smartasset.com, “What is a Codicil to a Will?”

A codicil is a legal document that changes an already completed and valid will. Some prefer to use a codicil rather than revise their entire will, usually for reasons of economy. The codicil allows the will’s creator to update specific provisions. A codicil can be used to change beneficiaries, assign a different person to be the estate executor, or even change the size of gifts made to heirs.

Codicils are like wills: they need to be signed and witnessed according to the laws of the state to be valid. People like the ability to make changes to their wills quickly and easily. However, sometimes, a codicil is not the right way to change a will.

The codicil performs best when changes being made to the will are minor in nature. They should be used to make small changes when the testator’s wish is to maintain the overall intent of the will. For instance, the birth of a new child and the addition of an heir could be reflected through a codicil.

An experienced estate planning attorney must create the codicil. Making a note on an original will with initials and a date is not a codicil. It’s a separate document, requiring a formal signature and the presence and signatures of witnesses. Most states don’t require a codicil to be notarized. However, you should check with your estate planning attorney to find out if this applies to your state.

Making a lot of changes to a will with multiple codicils may result in estate problems in the future. There are numerous instances where multiple changes, especially repetitive ones, like taking the same person off and then adding them back, are perceived as changing the intent of the testator (the person who made the will). This leaves the entire estate vulnerable to challenges.

Some typical reasons for using a codicil:

• Changing beneficiaries
• Replacing an executor
• Revising asset distribution
• Divorce, marriage, birth, death.
• Making new bequests
• Correcting prior errors or omissions

Before having your estate planning attorney create a codicil, there are a few steps to take. First, discuss the reason for the change and whether the entire will should be revised. A new will may be better if the change is not simple and straightforward. If the codicil is being done to disinherit a beneficiary, your estate planning attorney may have other suggestions. If you have created trusts, the changes to the will don’t carry over to your trusts. They may need to be modified as well.

Reference: smartasset.com (Oct. 23, 2024) “What is a Codicil to a Will?”