What to do with an artist’s work when he or she passes away can be quite exasperating.

Here are a couple of thoughts on the issue.

Passionate painters and sculptors make art all their lives, regardless of how much they sell. When they die, loved ones often find themselves in a predicament with what do to with the estate, at times hundreds or even thousands of works of art. Sometimes artists leave instructions on what to do with their work, yet many do not. Much depends upon how well the artist has planned for this event. Remaining relatives face the daunting task of how to catalogue, value, transport, store and probably also market the works of art, and are usually not prepared for this.

They often want to preserve what an artist spent a lifetime creating and, if possible, maintain or enhance his or her reputation. More than anything, they want the artist’s work to be seen. However, these goals can be complicated by a restricted art market and limits on what museums, galleries or other institutions will buy or accept as donations. Even if the art is donated, the organization accepting it must be able to take care of the work, which ultimately becomes an investment on its part.

If the artist is not connected with a collector, dealer or gallery, the art will have little monetary value and chances are pretty likely that it will eventually land up in a dumpster because, somewhere along the line, families stop paying rent on storage lockers. Living artists have enough trouble getting someone to represent them. Marketing the work of a deceased artist, who did not have much of a reputation while still alive, is almost impossible.

Artists ought to be encouraged to create complete inventories of their work and set aside money to help cover storage expenses. It is not too late and never too soon to begin to sort through the art that you still own according to when it was made, format and techniques. The art that you would rather not acknowledge should at this time be discarded so that it will not remain within your estate. Sign the works that should be signed.

Alternatively, let someone you trust know as much as possible about your works of art to better position them prior to becoming part of your estate. If possible, prepare an oral history of your life and work. This can be done with a good friend interviewing you while the conversation is being recorded. Review a list of pertinent questions together and ask your friend to ask you those while your answers, explaining the progress of your art throughout your life, are being recorded. View the result and add more if need be.

To ensure that one’s art is dealt with according to one’s wishes after death is by making a will. It becomes a much simpler task for the person or people inheriting your art if it has been properly looked after and all the records kept up-to-date. It will make it easier for the estate to continue the task of managing the work you leave behind. In this way, the chances are much more likely that you will live through your art for years to come.

When you do not make a will, you will die ‘intestate’, meaning that all your assets and properties, including your art and copyrights, will instantly fall to the State. Your relatives must request the High Court of Justice to appoint themselves as administrators of your estate, should a claim on the art be made. When appointed, they must pay for your funeral expenses, debts, taxes and other liabilities. Then they must dispose of your works of art according to the rules of intestacy laid down by law by giving them all to one’s surviving spouse, if there is one (a divorced and judicially separated one does not count). If there is no spouse, then one’s children (legitimate, illegitimate or adopted) must be given the works of art in equal shares. If there are none, then, in the following order, one’s parents, brothers, sisters, grandparents, uncles, aunts, nephews or nieces will take equal shares. If none of these is alive, then your art remains property of the State and they can do what they want with it. Nobody can complain, except that if one leaves a son under 21 years of age, an unmarried daughter or a (mentally) disabled child, any one of them can insist that your administrators sell your works of art to provide for maintenance money.

In one’s lifetime or by will, an artist can also set up a private foundation for the benefit of the management of his or her art and the public. All one’s remaining art will subsequently be transferred to that foundation. It is then required to pay gift or inheritance tax (of up to 70%) on the market value of the art at the moment of the transfer. If you have not sold much art during your lifetime, you can declare that the art is hardly worth anything so that the foundation is exempted from having to pay this tax. It is recommendable to contact a lawyer and the tax authorities for legal advice beforehand.

Apart from just a few isolated instances, an artist’s death has little immediate impact on the selling prices of his or her work. Most artists mature gracefully over time and gradually taper off in terms of productivity as they grow older. A significant number of artists stop making art well in advance of their deaths. Increases in the value of their art only take place slowly over decades.

A comprehensive book on the topic is ‘A Visual Artist’s Guide to Estate Planning’ published by the Marie Walsh Sharpe Art Foundation, New York, 1997.    

Jon Eiselin.