Enter the Lawyers: Choosing and Working with Estate and Foundation Counsel to Secure an Artistic and Philanthropic Legacy
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Description
This essay, prepared for the Aspen Institute's National Study of Artist-Endowed Foundations (Study), is about death and revival in a very special setting. It offers advice to artists, their families and advisors, and also to the lawyers they will work with, as they develop the artist’s estate plan and lay the groundwork for, and then manage, a foundation to realize the artist’s legacy through a philanthropy committed to charitable and educational purposes. Although I hope and expect that my advice will help all readers, the artists are the most important among them and whom I have in mind when I occasionally use the pronoun you. The intention throughout is to insure that the artist’s wishes are accurately identified and effectively implemented. Estate planning is complicated even in relatively simple circumstances, but especially in the one discussed here. Think about it. When the estate plan is made, the testator (let’s say this is a visual artist) does not generally know when he or she will die. Also, circumstances can change and changes must be foreseen so far as possible, but some cannot be foreseen. Changes can include new family members or new personal relationships. They can include change in the assets the artist owns at death—changes in both value and kind, as a result of sales, productivity, or reputation. Or the changes can be new estate tax or other laws whose possible adoption may not be contemplated. Then add to this the complications that arise when the estate’s property is not liquid and must be appraised, at least for the taxing authorities and perhaps for proper distribution of assets to heirs and beneficiaries or charity. The value and identity of that property might fluctuate, perhaps significantly, and often can be only roughly predicted when the estate plan is created. And some property is much harder to appraise accurately (e.g., paintings or intellectual property rights) than others (homes). Further complexity is introduced if the artist wishes to create an entity that will receive liquid or other assets in order to support a philanthropic purpose after his or her death—or indeed during a lifetime. The entity, let’s call it a foundation, must be created, its governing body identified, its method of succession defined, and its governing structure detailed. Who will make decisions about its operation? How will the artist’s intent be protected after death? How will the estate plan allocate distributions as between the artist’s family and the foundation (and perhaps others) and what happens after the death of the family members? These and other questions can make planning appear incredibly complex, and surely it is not simple. Many decisions must be made, some irrevocable, others amenable to change. This essay will try to clarify issues faced by artists, their family, and their advisers as they begin to think about the culmination of a productive life and the values they wish to preserve and perpetuate. Its focus will be those issues that arise in choosing and working with legal counsel. At the end of the essay, I will offer a summary of sorts—a half dozen recommendations to help guide readers through this specialized world.
Source Publication
The Artist as Philanthropist: Strengthening the Next Generation of Artist-Endowed Foundations: A Study of the Emerging Artist-Endowed Foundation Field in the US
Source Editors/Authors
Artist-Endowed Foundations Initiatives
Publication Date
2010
Volume Number
2
Recommended Citation
Gillers, Stephen, "Enter the Lawyers: Choosing and Working with Estate and Foundation Counsel to Secure an Artistic and Philanthropic Legacy" (2010). Faculty Chapters. 1247.
https://gretchen.law.nyu.edu/fac-chapt/1247
