Estate Planning for Artists: Q&A with Adrienne Mercer, Sarah Dykema & Laura Brazil of McInnes Cooper

Adrienne Mercer

As an artist, you've probably spent a lifetime creating. Have you ever thought about who will inherit your works after your death? What about intellectual property rights? Do you have a plan so that your loved ones will be taken care of? While it may be considered a morbid topic, estate planning is something that artists (and people in general) should keep in mind, no matter where they are in their careers. Adrienne Mercer, Sarah Dykema and Laura Brazil of McInnes Cooper will delve into these topics and more during their “Estate Planning for Artists” workshop on March 21 at St. John’s City Hall (Foran-Greene Room). The three facilitators took some time to chat with Business & Arts NL over email about property (both physical and intellectual), protection and the importance of planning.

Business & Arts NL: Speaking of artists specifically, what is the most pertinent thing they should be aware of when it comes to estate planning?

Laura Brazil

Adrienne Mercer, Sarah Dykema and Laura Brazil: Estate planning includes planning for death – ensuring that family or loved ones are taken care of both financially and in terms of care and guardianship – but also incapacity planning to ensure that financial and medical decisions can be made when a person is not able to make these for themselves. Not planning for death or incapacity means that the general rules set out in provincial legislation will apply. This means that only certain individuals would be authorized to act on behalf of a person or their estate. It also means only certain individuals would be entitled to property through a deceased persons’ estate. The individual who is appointed to act or given property through an estate, in accordance with the provincial legislation, may not be the same individual the incapacitated or deceased person would have wanted to act, or receive property. Estate planning allows you to specifically appoint who you wish to manage your personal affairs, medical and property, as well as the recipients of your property on death. There are many more non-traditional family situations today than ever before - common-law relationships, blended families, people with special needs, to name a few – and provincial legislation does not always address issues, or protect rights and benefits, for those in non-traditional situations. Clear estate planning documents are the best way to ensure that specified people receive the authority over and benefit of your estate.

Artists have some unique estate planning considerations that we will cover, notably how to plan for and protect copyrighted work – even after their death. Artists must think about who should inherit the intellectual property rights associated with their works – not just physical art works. Also, proceeds of sale from art may be directed to a particular person.

Business & Arts NL: Do you think enough artists realize the importance of getting their personal affairs in order?

Sarah Dykema

AM, SD & LB: Estate planning is like an insurance policy – you put it in place with the hopes of never using it – but of course we will need it down the road, we just never know when! Everyone, including artists, and regardless of perceived wealth, should develop an estate plan. Estate planning is more than just making a Will for the distribution of assets on death – it can involve appointing a guardian for minor children, providing direction for end-of-life care, and providing for charitable donations. Estate planning makes dealing with an estate easier on surviving family members and friends as it should involve creating a consolidated list of assets and liabilities and clearly appoint an individual to deal with these items.

Business & Arts NL: When should an artist start thinking about these kinds of things?

AM, SD & LB: While it’s never too early to think about estate planning, it is especially important to think about these types of things in the following situations:

· If you have created any literary, dramatic, musical, digital or artistic work, then you should have a plan in place that allows you to control the copyright associated with such works (and any rights or profits associated with the copyright).

· If you marry or re-marry. Marriage invalidates a Will signed prior to the marriage. Any existing obligation under a separation agreement or marriage contract/cohabitation agreement would have to be considered.

· If you have minor children or other dependants. It is important to appoint someone to be the guardian of minor children and to set money aside to provide for their care. Without a Will, the residue of an estate could be managed by the public trustee and then directly in the hands of a child when they reach the age of majority.

· If you are in a common-law relationship. Common-law spouses do not have the same rights as married spouses under provincial legislation, regardless of how long the relationship has been established. Without clear Estate Planning documents, common-law spouses do not have the same rights to appointment as guardians, substitute-decision makers or administrators of estates.

For more information on Adrienne, Sarah and Laura’s session “Estate Planning for Artists,” click here.