PAYMENTS UNDER A PUBLISHING AGREEMENT AFTER THE DEATH OF AN AUTHOR

What happens when an author who is receiving a royalty under a publishing agreement dies?

  1. The agreement does not terminate.  The publisher continues to hold the rights licensed to it under the agreement and continue to publish the book, although the publisher will remain obligated to pay the royalty as required under the agreement.
  2. At the time of death, all property of the author becomes part of the author's estate.  In most cases, an individual will apply to the probate court of the county where the author resided to be appointed as the personal representative of the estate.  (The personal representative, sometimes referred to as the executor or administrator, is the person charged with collecting the deceased author's property, paying the author's creditors and distributing the balance of the property as provided in the author's will, or, if there is no will, as provided under the state statutes for intestate succession.)  If the author had a will, the proper party to apply for appointment as the personal representative will be the person named in the will.  If there is no will, state law lists persons who are eligible to serve as the personal representative based on relationships to the deceased author.
  3. A personal representative who receives a royalty check made payable to a deceased author should be able to deposit that check in the account of the deceased author's estate.  Alternatively, the personal representative may return the check to the publisher and request that the check be reissued in the name of the estate.
  4. In most cases, the personal representative will distribute the author's rights under the publishing agreement (i.e., the right to receive royalties) to the person or persons named in the deceased author's will.  Usually the rights under the agreement will simply become part of the "residue" (i.e., the remainder of the estate after all specific gifts of money or property have been paid from the estate), and will be distributed to the residuary beneficiary or beneficiaries.  If the author had no will, the personal representative will distribute the author's rights under the publishing agreement to the person or persons named under the laws of intestate succession.  In some cases, the author's estate may remain open for several years, and the estate will continue to hold the rights under the publishing agreement. 
  5. If the author's entire probate estate is under an amount specified in the applicable state law (usually $10,000 to $20,000), then, in lieu of opening the estate and obtaining the appointment of a personal representative, a person who is entitled to receive the author's property may simply present an Affidavit for Collection of Personal Property and request distribution of the property to himself or herself.  A person will be entitled to receive the author's property if that person is named as the beneficiary of that property in the author's will, or, if the author had no will, is designated as the author's beneficiary udner the laws of intestate succession.  For example, if a Minnesota author dies with an total probate estate of less than $20,000, and the author's surviving spouse is named as the sole beneficiary in the author's will, the author's surviving spouse may present an Affidavit for Collection of Personal Property to the author's publiser and request that all future royalties be paid to the surviving spouse.
  6. Upon being notified of the death of an author and being requested to pay future royalties to another person, a publisher should ask for a copy of the Letters Testamentary for the author's estate to verify the appointment of the personal representative, and should also get a letter signed by the personal representative identifying the person or persons to whom future royalties are to be paid.  If no personal representative was appointed, the publisher should ask for an Affidavit for Collection of Personal Property signed by the person or persons seeking payment of future royalties.  A publisher who pays a royalty without obtaining one or the other of these documents risks having to pay the same royalty twice if another person later surfaces and claims that he or she is entitled to payment of the royalties.