Artists' Wills

Your Will 

Everyone ought to have a professionally drafted Will.  That does not mean one you buy for a fiver from the local stationery shop, despite the curly typeface of the printing in the cover, nor does it mean a downloaded standard version which you pick off the internet.  No two families or situations are alike and you owe it to yourself and your family to have a professional Will prepared by a solicitor with experience in this field, preferably with experience in making Wills for artists.  

You can save time and expense on your visit to the solicitor by doing some preparation in advance. Make a list of your main assets and what you think they are worth. Note which are in your sole name and which are in joint names with your spouse. Draw a little family tree to explain who is in the family, their ages and so on. If you want to bequeath certain items to particular people then think this through in advance, and write out a list of the particular belongings with names and addresses of the chosen beneficiaries. If you are going to make gifts to charity, list the charities and how much each is to receive. 

For simplicity this article will refer to spouses but the same rules apply between civil partners. However this is true only when you have properly tied the knot. So-called “common law spouses” and non-legal partners have very limited protection under succession law and inheritance tax law, and if you are in that kind of relationship it is even more important to seek proper advice and make a Will. 

The executors are the people who will sort out your estate after your death, gather in your assets, pay any inheritance tax and distribute the assets, or hold them on trust if the beneficiaries are in need of protection.  Choose your executors carefully, pick people who will get on well together and are up to the task, and will not be either distressed or overwhelmed by it.  If you have a good relationship with your solicitor or accountant then you ought to consider appointing one of them to be one of your executors as they will be used to dealing with the task.  

Inheritance tax is administered by HMRC Trusts and Estates, Inheritance Tax or HMRC Capital Taxes. The very good news is that inheritance tax law exempts a business from inheritance tax, through "business property relief", or "BPR", and the work of an artist is regarded as a business.  If your executors can demonstrate to HMRC that you are still carrying on artistic activity (such as producing work for sale or selling) at the time of your death then business property relief will apply to your artistic stock, your copyrights and other intellectual property rights, your papers, working library, computer, squirrel brushes and your easel. If you maintain a separate bank account for your artistic sales and purchases then the balance in this will also be covered by the business property relief but only to the extent that the funds are reasonably necessary for your business. It will be hard to claim BPR on the cash if you keep your receipts and cash flow mixed in with your general savings, so set up a separate account for your artistic business activities. 

If however you have retired as an artist, these assets are no longer treated as business property. They are simply assets of your former business and may liable to inheritance tax. So it is useful to go on being an active artist for ever. Fortunately very few artists ever really retire - they always seem to have plans for new work, a new project, or a late edition of a print, or are in discussions with their gallery about a forthcoming exhibition. As long as records exist to show that there is continuing artistic activity then BPR relief from inheritance tax will be available.  

Business property relief applies only to your own artistic activity. In general, if your spouse inherits your artistic assets there will not be any relief on his/her death when the artwork passes to the children. So there may be advantages in leaving the artistic assets direct to the children, or to a trust, or forming a company to hold them but these more complex arrangements need some careful planning on which you should seek specialist advice. 

Samantha is a well-known artist. A gallery has represented her for several years but maybe she will make a change as she feels a new gallery may do better for her. Her studio and storage are filled with unsold work, ranging from preparatory sketches to completed canvasses. She is married and has three children ranging in age between 25 and 40. None seems to be very interested in her art. Probably they would think of selling it all if she died. She doesn't have an inventory of her work. but employs a loyal studio assistant who "knows where everything is". Some of her work has been loaned out for exhibitions, but never returned

Samantha should give serious thought to the choice of executors. People often think of appointing their gallery as an executor but that leads to conflicts of interest, and is not a good idea if you think that you or your executors might want to change your representation. Some of the tasks her executors may have to take on will be.

• Clearing the studio
• Preparing a catalogue raisonné, or at least cataloguing her work 
• Arranging storage and insurance 
• Deciding with her gallery on a sales strategy 
• Monitoring the activities of the gallery
• Tracking down and recovering work out on loan
• Employing the studio assistant and other staff
• Supervising sales, accounting, paying VAT and other taxes, and dealing with all the other mundane tasks of anyone running a business  

Who is best placed to handle these jobs – her accountant, one of the children, a trusted friend? Remember that these responsibilities may go on for many years and think whether she needs to provide for payment of someone who may have to give a good deal of time to Samantha's affairs. 

The executors will be responsible for distributing funds to the beneficiaries. What does Samantha want to do about that? It is widely recognised that putting all an artist's work on the market at one time can have a disastrous effect on prices, so generally they will be fed out to the market slowly over several years. Does Samantha merely want to advise her children of this, or does she want to leave the timing and pricing of sales to the discretion of her executors.  

Some artists wanting to secure their artistic legacies will want to set up a charity to receive part of the proceeds of sale of their work. Who would be the trustees of such a charity? What proportion of her estate will go to charity? There are benefits in leaving part of your estate to charity – if you leave more than 10% of the taxable estate to charity the rate of inheritance tax is reduced from 40% to 36%, but Samantha needs to consider what the prospective inheritance tax will be. If all the art carries BPR, and any balance of her estate goes to her husband, there may not be any inheritance tax on her death. Samantha should use the making of her Will as a time for general tidying up of her affairs. Are any contractual arrangements neatly filed, or are they in an unmarked cardboard box in the shed?  Will her executors know where to find everything, or will the administration of her estate have to be a treasure hunt, searching hard for documents, accounts and missing insurance policies?  

That should not be an excuse for leaving every piece of paper which has your ever crossed your work-table squirreled around your house.  If your filing system is entirely in your head, your heirs are unlikely to be able to much use of it, so I would recommend you to open a document on your PC and put down the key information for your family to find (then of course print off the information and leave it in sealed envelope with your Will or with some reliable person).  Doing this for the first time is a bit of a chore but keeping it up to date is quite a pleasure. We can all follow the example of Samuel Pepys who used to enjoy taking stock of his assets and situation at the end of every year. This is something you can do yourself and for which you do not need to pay a lawyer. In my experience sorting out your affairs is quite a satisfying exercise, and once done is fairly easily kept up to date. 

Intestacy – the state of not having a will – may create dreadful problems of inheritance and tax for your nearest and dearest. “Après moi, le déluge” is a saying attributed to King Louis XV. If that’s your approach, please think again!

I do hope this article will act as a spur to action.  If you hesitate, remember what James Agate, the critic, noted in his diary on 1 June 1943: “About five o’clock, I am convinced as of old that I am suffering from a combination of the DT’s and GPI.  Think of making my Will but make some tea instead.”

Robert Craig is a Consultant in the Private Client Department of Howard Kennedy LLP Solicitors, and has particular experience of estate planning and wills for artists and authors.