Estate Planning for Artists: Let Professionals Manage the Art

For more information about artist estate planning, read Artist Tips: Checklist for Planning Your Art Estate

Q: I'm deciding what to do with my possessions in the unlikely event of my demise and am wondering who should manage or oversee the sale of my art. I have well over 400 pieces at my studio. Should my wife and children handle it or should that responsibility go to one or more of the dealers who've represented me over the years? How about donating everything to a museum?

A: Leaving your art in control of immediate family members who know little about either your career as an artist or the art business in general can potentially do more harm than good in terms of your legacy as an artist. In fact, the more successful you are, the greater the chances that problems can arise as a result of mismanagement. Family members who lack appropriate understanding of how the art business works cannot promote your art effectively, can confuse sentimentality with dollar value, are often unsure of what to sell and what to hold, and may have difficulty distinguishing opportunists from helpful dealers, collectors, agents or other qualified fine art professionals. Among other things, inexperience can lead them to quote potential buyers prices that are well beyond retail, ask for too large a percentage of the profits when working through galleries, agents or consultants, or cause them to ignore requests of legitimate dealers to offer the artwork at sensible prices. Getting the art out into the public becomes difficult and in extreme cases, the market for an artist's art can be significantly compromised.

Less often, family members grossly undervalue the art and either sell it off in bulk to dealers or occasionally even destroy pieces that they regard as insignificant, or that they simply don't like. Once again, personal feelings predominate over reason, experience and understanding. Family members are not always to blame, by the way. In more than a few cases, artists fail to adequately inform family members that they have respected profiles in the arts community, keep them current on the values of their art, or provide specific instructions on how to archive, maintain and sell it.

Best procedure for you or any artist is to make arrangements with a gallery or galleries to represent your estate and to continue to show and sell your work after you're gone (assuming those are your wishes, that is). If you've had reasonable success in your career, consulting an arts attorney in advance is probably a good idea, as well as discussing the potential tax implications of your estate with an accountant. The decision on whether to have family members sit in on negotiations or to simply present them with the final contractual agreements is up to you.

When negotiating or hammering out contracts (with the assistance of attorneys or accountants as required), issues worth considering and including (as required) are current wholesale and retail price structures (by the piece, or according to size, medium or other characteristics), dealer commissions, methods of payment, percentages of profits that go to specific family members, and how and where the art is to be stored, maintained, and accessed. Ultimately, dealers or estate administrators should have control over whether and how much to raise or lower selling prices in the future, so don't be too rigid or insistent here. When a percentage of the art is to remain in the family, leave complete instructions on who gets what, and how to appraise, sell or donate it if or when those situations arise. Lastly, make sure every piece is catalogued and classified according to your agreement.

If you don't have a solid relationship with a gallery, agent or representative, consider cultivating and hopefully establishing one sooner rather than later. Another option would be to have someone knowledgeable but not necessarily in the business represent your work, but galleries or dealers are generally better for this. In any case, make sure you have adequate referrals from artists and collectors before proceeding with any particular dealer, gallery or related agent or representative. If for some reason you end up dealing with people you don't really know, consult an arts attorney, an accountant and an appraiser (especially if you need to determine realistic values for your art) as required in order to protect your interests.

As for donating to museums or other institutions, contact mainly those that have expressed interest in your work over the years, and if they would still like to have works of your art, donate only what they ask for. Don't insist that anyone take more than they want, try to micro-manage the specifics of the donation, or indiscriminately donate to places that aren't familiar with your work. Excess or unwanted donations of art are often refused altogether, or when they're accepted, either get placed into eternal storage or end up on tables at white elephant sales. Only consider a mass donation if an institution is interested. If your primary reason is tax related, make sure you fully understand IRS requirements and plan everything out well ahead of time.

You can further enhance the future market values of your art right now by making sure that everything is signed, dated or otherwise labeled, catalogued and organized including sketches, drawings, and lesser items. Be aware that in situations where artists leave behind quantities of unsigned works, those representing the estates are often forced to make estate stamps or provide other forms of certification after the fact. Galleries and collectors view these pieces as less desirable in the marketplace because the artists never took time to sign them and, therefore, tend to pay less for them.

Also document as many pieces as possible in terms of age, significance, and other relevant details. Good documentation increases everyone's understanding of your art-- including you-- as well as its value. Collectors prefer knowing the histories behind what they buy and pay for that privilege. You younger artists might even think about starting this now while the details of your careers and individual works of art are still relatively fresh in your minds, because the more time that passes, the hazier you'll get when it comes to piecing together the progression of artistic events in your life.