Who cares about art after death?

Turner did: Rothko did. But apart from that question, the Rothko case raises an equally serious and more practical question for artists: how to ensure that their art is dealt with, after death, according to their wishes.

Should I make a Will?
Yes, otherwise your art works will be disposed of according to rules of law and not in accordance with your wishes. Even though Rothko made a Will which dealt with his house, his cash and his Seagram paintings, he did not make proper provision for the disposal of the 798 paintings unsold at his death – and look what happened as a result.

What will happen to my work if I don’t make a Will?
You will die ‘intestate’, meaning that your ‘estate’ (all the property you own, including your art works, at death) will immediately belong to the Family Division of the High Court of Justice. Your relatives must ask the court to appoint themselves as ‘administrators’ of your estate; when appointed, they must pay your funeral expenses, debts, taxes and liabilities; then they must dispose of your art works – not according to your wishes, but according to the ‘intestacy rules’ laid down by law – by giving them all to your surviving spouse, if you have one, (a divorced, judicially separated, or ‘common law’ spouse does not count). If you have no spouse, then your children (legitimate, illegitimate or adopted) must be given the works, in equal shares; if you have none, then your parents, brothers and sisters, grandparents, or uncles and aunts will take, in that order. If none of these is alive, then your work must be given to the Crown as your work can do with it what they will; nobody can complain – except that if you leave a son under 21, an unmarried daughter, or a mentally or physically disabled child, any one of them can insist that your administrators sell your work to provide maintenance money for any one of them.

How do I do it?
It takes three to make a valid Will; four to be safe. To be valid, it must be made in writing, be signed at the end by you in the presence of two adult witnesses, and then be signed by them in your presence; any subsequent alterations must be initialled by all three of you, in the same way. The fourth person? A lawyer.

Do I really, need a lawyer?
One reason for consulting a lawyer – and, if possible, one experienced in dealing with artists – is to ensure that you do not make the same mistakes as Rothko: he sought and. took the advice of a non-lawyer who was also his close friend and confidant and was the accountant for his gallery; this man, Reis, was simply unable to express an independent, unbiased view about what should happen to Rothko’s work when he died; thus no proper provision was made in Rothko’s Will dealing specifically with each of his unsold works (798 when he died), and, as a result, they were unfairly and improperly sold.

Furthermore, because a Will speaks for you from death, the words you use are vitally important – no questions can be asked of your friends and relations to clarify your intentions, if the words you have used in the Will make sense at face value. You should therefore get a lawyer to draw it up for you. There are many legal pitfalls to avoid and niceties to observe, such as not leaving gifts to witnesses; making adequate provision for a spouse and dependent children; disposing of work you may carry out after making the Will; arranging your affairs so as to minimise your liability to pay capital transfer tax; or otherwise deal with your work – and many more.

Finally, your Will must name up to four executors whose job it will be to take legal possession of your work when you die, to obtain the court’s approval that the Will is valid, and to put its provisions into effect – in accordance with your wishes. Those duties must be entrusted to persons of the highest integrity who do not and will not have a personal interest in your estate in conflict with their duty as executors, who should be chosen by you only under expert guidance from an independent lawyer. Rothko took the advice of Reis (a non- lawyer) regarding the best way to dispose of his works and as to the choice of executors, and on that advice appointed Reis, Stamos and Levine to be executors (two of whom had a personal interest in Rothko’s work) and left 798 of his paintings to a foundation (of which the three executors were also directors); and this enabled the executors to sell the works – albeit wrongfully – at a very low price, to the benefit of two of them and to the detriment of the estate.

The choice is crucial: see a lawyer.

What happens if I change my mind?
Revoking a will is easy: destroy it. Just tear it up or burn it – don’t throw it away, put a line through it or write on it ‘this Will is revoked’ – or get married (only if a Will is made in contemplation of a specific marriage will it remain valid after that marriage has taken place). You could make a second or any number of subsequent Wills or ‘codicils’ which may revoke, vary, or add to a valid earlier Will – particularly useful way of making arrangement for the disposal of any art works completed after the first Will have been made and not dealt with in it (Turner did this); but, again, you must take legal advice, because all the formalities still have to be complied with.

Perhaps you don’t care or can’t be bothered: it is your art, your life and your choice.

© Henry Lydiate

 

 

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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.