The Artist’s Estate

A tale of an ill-drawn Will and 798 paintings was told in this column 40 years ago following a New York State court’s 1975 decision in favour of Mark Rothko’s children, who had contested their father’s last testament made shortly before his suicide in 1970. The Rothko wrangle was analysed for learning points: ‘perhaps the most important and healthy impact of the case is that it exposed the sophisticated machinations of the art market, underlining the need for all artists to seek and take independent professional legal advice when entering into any arrangements, be they testamentary, contractual or otherwise. Only by doing this, will they ensure that their best interests and wishes are truly, clearly and fairly represented.’ (Artlaw AM6).

The reason for this column’s extensive coverage of the landmark case was that were then no publications or services dealing with artists’ estates. Only in very recent years have things changed. In 2013 the Royal Academy published a monograph on estate planning in the visual arts: The Artist’s Legacy. In 2014 the DACS Foundation was established as an independent charitable organisation ‘dedicated to the physical and intellectual preservation of the UK’s cultural heritage’, and its first major project is Art360 aimed at creating ‘a new and encompassing perspective on the value of artists and their works through archiving and legacy planning’ (Artnotes AM392). In 2016 a conference was held in Berlin inaugurating the Institute for Artists’ Estates: Keeping the Legacy Alive addressed the issue of managing the estate of a deceased artist, as does a companion publication, The Artist’s Estate, by Loretta Würtenburger (co-founder of the Institute, who works with the estates of Hans Arp, Sophie Taeuber-Arp, and Keith Arnatt).

This publication provides a wealth of practical knowledge and experience to its intended readership of living artists, executors and heirs of deceased artist’s estates. Use of English is exemplary, and essential legal or financial terms are clearly explained. The handbook takes a starting point that artists’ estates have a three-phase life cycle – strategic and safeguarding, operational, expansion or final – and notes that ‘despite differences among artists’ estates, the living artist planning for the future or the estate itself must ask the same questions in order to develop a successful strategy’. These questions are well structured into six chapter headings.

‘What Is an Artist’s Estate?’ distinguishes between the legal meaning of an artists’ estate and the commonly understood sense of the term. In law when any person dies all assets (and liabilities) comprise their estate, and hence the estate will include artistic and non-artistic assets. It is commonly understood that an artistic estate refers only to artistic assets. For the avoidance of doubt after death, artists should decide whether they wish to make separate arrangements for their artistic estate and, if so, to make a Will accordingly.

‘How Should Estate Work Begin?’ considers how an artist’s estate can be managed. Although there is no single answer to this question, success lies in asking a series of sub-questions, the answers to which should result in strategy development dealing with: condition of the estate, administrative structure, administrative personnel, objectives, financing and duration. Subsequent chapters expand possible answers, which may take an estate up three years to address before undertaking operational activities. During this strategic development phase, the artistic estate’s assets should be secured and safeguarded immediately after the artist’s death. Ideally the estate should be able to use an inventory and organisational system created during the artist’s lifetime, but often artists bequeath no such tools, and so most estates expend considerable resources in bringing together all artistic assets owned but not possessed by artists at death, principally completed artworks ‘scattered in various places’. Useful recommendations are made for using various specialised software programmes now available for cataloguing artworks and eventually creating an authorised catalogue raisonné.

‘In What Forms Can an Artist’s Estate Be Administered?’ considers this the most important of the handbook’s six questions, because answers to the other five derive from it. Two basic administrative models are considered: private via artist’s heirs; institutionalised via a separately created legal entity. In either case an artist’s Will should ideally specify the preferred administrative method, especially if a separate legal entity is required (because most inheritance laws of most countries automatically transfer the estate to heirs of a deceased artist who has not made a Will). One advantage of a Will’s specifying a separate legal entity is that it can be created ‘for the public benefit’ and can be granted tax-exempt status. Extensive explanations and tips are given for ways and means of legitimate mitigation of potential tax liabilities – especially when most artists’ estates are invariably ‘art rich and cash poor’ – and include skilful navigation of different legal approaches to such complex matters through the prisms of continental European compared with Anglo-American jurisdictions.

‘Who Should Administer an Artist’s Estate?’ segues from answers given to the previous chapter’s question. Historically an artist’s family/heirs undertook responsibility for estate administration, but recent years have seen ‘the advent of a range of possible administrators’ including third parties unrelated to the family, art dealers and galleries, auction houses, museums and public archives, and service providers specialising in artists’ estates.

‘How to Keep an Artist’s Work Alive?’ It would have been understandable if the handbook’s primary focus on practicalities had ignored what for many artists lies at the heart of the matter: artistic legacy. This chapter tackles the matter head-on, professing that ‘an artist’s estate is successful when it is able to keep the work alive … when successive generations of artists draw inspiration from the work and when curators, scholars, and collectors continually find new approaches to it’. Keeping an artist’s legacy alive requires that an estate ‘facilitates discourse, contextualises the work, initiates exhibitions, and encourages contemporary artists to engage with it’. Three institutions are identified as pathfinders: universities, museums, and the art market. Each body is considered in detail as a navigational tool to be attended to equally by the estate, because each is ‘inherently intertwined’ with the other.

‘Should an Artist’s Estate Live Forever?’ considers two key options: sunset, and eternity models. In other words, ‘we should ask whether a given estate will exist in perpetuity or not’. The sunset model anticipates termination of the estate at a point when all its goals have been achieved and/or frustrated. The eternity model usually operates where a separate legal entity has been created and endowed/resourced to operate indefinitely. Detailed sample facts and figures exemplify estate expenditures of each model. Income sources are explored, including selling art, reproduction and distribution copyright licensing fees, posthumous editioning and sales, and resale rights.

Following the six practical chapters, the handbook includes transcripts of a dozen research interviews. Specifically conducted by the author and covering a range of artists’ estate issues (occupying almost half the handbook), interviewees are representatives of artist’s foundations (Henry Moore, Louise Bourgeois, Robert Motherwell, Robert Rauschenberg, Donald Judd, Robert Mapplethorpe) and artist’s estates (Paul Klee, Max Beckmann, Eva Hesse, Martin Kippenberger, Philippe Vandenberg, Roy Lichtenstein and William de Kooning). Although such artists’ works are at the top end of the market, valuable transferable lessons can be learned from their legacy operations by all artists and estates.

The Artist’s Estate: a handbook for artists, executors and heirs, ed. Loretta Würtenburger, Hatje Cantz Verlag, Berlin, 2016, 304pp, £27, 978 3 7757413 3 0

© Henry Lydiate 2016

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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.