Death of an Artist

Artistic legacies emerged as a theme in art news reports towards the end of 2013. For example, UK courts ruled that drawings sold as Francis Bacons were inauthentic, and US court documents revealed that 35 paintings seized by the Andy Warhol Estate from Warhol’s off-site printer in 1991 because they were inauthentic were then sold as authentic in 2003.

Warming to this theme as 2014 begins to unfold and artists contemplate what the future may bring, thought might be given to art after death. Let us consider typical issues involved in and arising from the death of an artist.

A scenario: the artist died unexpectedly from a heart attack. She was in her 60s, lived alone in a ground floor garden apartment rented for two decades as studio and living space. Briefly married to a much younger artist/studio assistant, she had long since divorced and had no children. Scores of works in two and three dimensions were densely scattered throughout the apartment, small back garden and workshop/shed. No documentation or other records identified which works were complete or in-progress, for public exhibition or not, for sale or not, sold or not, and whether any absent works were on loan or consignment and, if so, to whom. A mass of written correspondence, photographs, celluloid films and sketch-cum-note books – dating back four decades – were crammed into mildewed cardboard boxes. There were no bank accounts, life insurance policies, pension documents or cash (save what she carried in her shoulder bag when she died). There were a few clothes and shoes/boots, many tools and raw materials. This was primarily a working studio/workshop with minimal space for sleeping, cooking and eating, and abluting. This is the Artist’s Estate.
The artist was represented by her will, which was held by the law firm that had drafted it. Appointing her neighbour as joint executor with her lawyer, the will gave the artist’s personal effects to her sister and brother and their children, all of whom were living in another country from which the artist originated. Her ‘artistic estate’ – works and related material – was required by the will to be held in trust by the executors for charitable purposes: ‘to support young unknown artists working in primarily conceptual and/or performative disciplines’. The lawyer and neighbour executors knew that the artist in recent years had tried to establish such a charitable trust/foundation, but had failed to do so because she could not find suitable people willing and able to accept the responsibility of trusteeship.

The artist’s idea of a trust/foundation was not unrealistic. She had achieved international critical and market standing over four decades. Her works had been acquired by many major public and private collections, and been traded on the secondary market at auction and by dealers (though she never had a permanent business relationship with any dealer for primary sales, preferring to make them herself). The market value of her artistic estate was significant at the time of death, and would undoubtedly increase in subsequent years and decades. Such were the current and potential capital assets the two trustee/executors were required by the will to safeguard, manage, promote, and use for the intended beneficiaries. However, neither trustee/executor had any knowledge or experience of the art world or how to deal with the artist’s artistic estate. Nor did they have any cash from the artist to fund their work.
Much needed doing – quickly. Apart from organising a funeral (paid for by the artist’s family, who had limited means), submitting the will for probate and paying any inheritance/death taxes, the international art world and media (including obituarists) were variously suggesting: a memorial service being held; the artist’s rented studio being bought and preserved as a museum/archive; unsold works being professionally photographed, inventoried, crated, transported and stored in a secure art storage facility; the artist’s archive being inventoried, restored/conserved and offered for acquisition by a suitable public institution. And the trustee/executors had a more urgent problem: the owner of the artist’s rented apartment required removal from the premises of all the artist’s possessions within one month from the date of death.

Two key legal rules generally apply to trustee/executors. First, they are allowed to repay themselves from the deceased’s estate personal expenditure they have made in administering and implementing the will. Second, they are required to achieve the best market value if they sell items from the estate (public auction being the usual method). This second rule can be inherently contradictory in the case of deceased artists who leave little cash, if any, but much unsold work. On the one hand, selling works is an obvious way to raise necessary cash to fund the expenses and work of trustee/executors; on the other, better prices for works are invariably fetched the longer after death the sales occur. A classic catch-22 situation.

Such a situation was faced by trustee/executors of Andy Warhol’s will in 1987, when the artist suddenly and unexpectedly died through unsuccessful gallbladder surgery. There was not enough cash to establish and operate the Andy Warhol Foundation for the Visual Arts (required by the will), but there were a large number of unsold artworks and related personal effects. Imaginatively unlocking the catch-22, the trustee/executors decided to auction only Warhol’s personal effects (including his wigs). Within nine days of his death, the auction was held at Sotheby’s New York. A phenomenal success, it grossed $20m and provided income substantial enough to fund the Foundation and its mission ‘to foster innovative artistic expression and the creative process … focused primarily on supporting work of a challenging and often experimental nature’. The Foundation did not sell the bequeathed Warhol works in the years immediately following his death; these were held by the Foundation and exhibited in the Warhol Museum it established in Pittsburgh. Only in 2013 did the Foundation agree (with Christie’s New York) a long-term and gradual sales strategy (Artnotes AM360).
Most artists give little if any thought to legacies until they acquire dependents and/or enter middle age and beyond. The job of their future trustee/executors could be facilitated by living artists embracing within their practices, from the outset of their careers, straightforward and non-taxing measures. For example: maintaining a running inventory of works in progress, those completed but unsold and/or on loan/consignment, works sold and to whom; indelibly endorsing works with an inventory reference; securing a life insurance policy the beneficiary of which could be their trustee/executors and any future possible trust/foundation; making a will and keeping it up to date.
Some artists give much thought to posterity and plan accordingly. Perhaps the most notable example is Marcel Duchamp. He worked secretly on conceiving, planning, sourcing and fabricating materials, and trialling assembly of an installation work for 20 years. He left written directions that the work could not be exhibited until after death, and a manual of instructions for its assembly and disassembly. He died in 1968 and, following his directions and instructions, the work was assembled and exhibited at Duchamp’s intended location in 1969. The Philadelphia Museum of Art continues to own and show this now iconic posthumous work, Étant donnés, 1946-66, through which Duchamp delivers the completion of his artistic explorations.

© Henry Lydiate 2014

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.