The media seems to be concerned with two primary subjects lately, and both topics continue to trounce each other in turn on social networks for attention:
1. The presidential elections
2. The death of Prince, and his lack of a will
We’ll worry about the elections later, but right now we should clear up a misunderstanding. It’s not the lack of a will that is so important. For a musician of Prince’s caliber – it’s more the lack of a trust and overall estate plan that is most critical.
Here in California, one needs a trust to avoid probate courts if real property is involved – a will won’t help your heirs in that regard, and probate is a very expensive process.
Having only a will is fine for those who have smaller assets to bequeath, such as small sums of money, a car, jewelry etc. In California, up to $150,000 of otherwise probatable assets can be distributed without requiring a probate.
For those with real estate and larger financial assets, a trust is needed. Additionally, a will only goes into effect when a person passes away, whereas a trust can ensure care and stability during life; which is much more of a concern for those of us who are not living like rock stars.
Even a rock star like Prince should have had an estate plan though, particularly if the rumors of his prescription drug addiction turn out to be true. If an overdose or some other tragedy had left the musician incapacitated, Prince could have used an estate plan to determine who makes health and business decisions until he recovered.
Intellectual Property and Right of Publicity
The website TMZ is reporting that Prince had no will, though it’s entirely possible one will turn up eventually. In the meantime, the musician’s sister filed documentation in probate court to have Prince’s bank, Bremer Trust, administer the estate.
If there really is no will, and if an old but valid will turns up, it is likely that it will be different than what he would do if making decisions in the year before his death. For now it seems Prince’s siblings will divide proceeds from the estate under Minnesota law.
If the bank is approved as Trustee, it will have to determine the values of Prince’s real property (mansion, grounds, memorabilia, etc.) as well as that of his intellectual property, including an issue called right of publicity. Right of publicity puts a value on the musician’s name and image.
We saw this same issue come up when Michael Jackson passed away. The case is still unresolved, eight years after the King of Pop died, and there is no immediate end in sight. Appraisers for the IRS and the estate argue over the value of Jackson’s master recordings, likeness, right of publicity and other details.
Estate Planning for Intellectual Property
Any artist who engages in creation for profit, inventors, and business owners, should include intellectual property rights in their estate planning.
1. Copyrights in the United States exist for the author’s life plus an additional 70 years (if the work was created after 1978). For a “joint work prepared by two or more authors who did not work for hire,” the term lasts for 70 years after the last surviving author’s death. For works made for hire and anonymous and pseudonymous works, the duration of copyright is 95 years from first publication or 120 years from creation, whichever is shorter. Heirs may profit from copyrights until they come to term.
2. Duration of publicity rights (use of name, likeness, voice, image, signature) vary from state to state. In at least 13 states (including California), it runs for 70 years, from the date of the artist’s death.
3. Trademark rights do not expire so long as they are actively used. In most countries to maintain trademark registrations, the owner must renew the registrations every 10 years.
4. For patents, the term is 20 years from the filing date of the application (for those patents filed on or after June 8, 1995. Design patents have a term of 15 years from issuance (for applications filed on or after May 13, 2015).
All intellectual property can be distributed among heirs, just as other property can. But ownership rights may be determined by actions the original author or owner of the intellectual property did during their lifetime.
For example, let’s imagine the album Purple Rain was never released, and left in the famous vault at Paisley Park. Prince may have bequeathed or transferred during his lifetime the original sheet music or recording to one heir, the rights to digital reproductions to another, and the right to turn the song or album into a movie, to a third.
Taxing Challenges for Prince’s Estate
Considering Prince’s habit of living large and presumably, having some unresolved debts; his personal wealth; innumerable real property assets; and undetermined values for intellectual property assets, the probate courts will be a long time in unraveling how the musician’s estate should be administered. Currently, a very conservative estimate runs at $250 million, which could potentially result in $120 million going to state and federal governments. (Unlike California, Minnesota has a state estate tax.)
So what’s the lesson here? Don’t let nearly half of your net worth go to the government, when it could be better used by your family, friends, or a worthy charity.
Prince was apparently charitably inclined. If he had made gifts to charity through a will or trust, a significant amount of estate taxes could have been saved. Further, to the extent he was making charitable donations during his life, those beneficiaries will now no longer receive support from the music icon's largesse. Prince's legacy in this regard is apparently, no more.