Advising the Personal Representatives and/or Executors and/or Beneficiaries
| Author | James Normington |
| Pages | 67-83 |
6 Advising the Personal
Representatives and/or
Executors and/or
Beneficiaries
Please Sir, I want some more.
Oliver Twist, Charles Dickens
There are a number of matters that need to be communicated to the
personal representatives and/or executors when they begin acting in an
estate. It is highly likely that many lay people will have little or no
understanding of the depth and breadth of digital assets, or how digital
assets apply to an estate. It is vital that this is dealt with in language that is
accessible and easily understood by the lay person. There is one recent
example where the solicitor informed an executor about the licensing,
propriety, security and copyright issues at length in a consultation.
Following the comprehensive explanation, the executor asked, ‘So are you
telling me I can’t sell his iPad to the second hand shop?’
6.1 Distribution matters – non-financial issues
6.1.1 Digital authorship issues such as ebooks
Fifteen years ago there would have been limited need, if any, to consider
digital authorship in terms of the probate of an estate. In 2016, the Nielsen
Books and Consumers UK Survey found that self-published titles made
up 22% of the whole UK ebook market.1 That growth rate has continued
to balloon and as of 2018, self-published ebooks accounted for 30% of the
overall ebook sales.2 There are now estimated to be in excess of 1.4 million
self-published titles on Amazon’s Kindle platform, and traditional vanity
1Lisa Campbell, ‘Self-published titles “22% of UK e-book market”’, The Bookseller,
23 March 2016, www.thebookseller.com.
2The Publishers Association Yearbook 2018 (The Publishers Association, 2018).
68""Part 3: Pre-death Issues
publishers – once the market dominant force in the self-publishing market
– account for only about 6% of all new self-published titles. The dominant
forces now are digital media platforms, such as Amazon’s CreateSpace.
The question then becomes what should personal representatives and/or
executors be advised about ebooks? The first issue to identify is where the
self-published ebook titles are registered. In reality, this is much easier
than one might think. The platforms will submit monthly or quarterly
reports to self-publishing authors who are presently registered on their
respective platforms. Amazon operates an extensive ‘lending library’ to its
Kindle, and tracks usage by title. The periodic reports to the author note
the individual titles and the number of times each title has been ‘borrowed’
on the system. Royalties in respect of each title borrowed are paid by
Amazon to the author via a direct deposit (sometimes referred to as an
electronic funds transfer) to the author’s bank account.
Therefore, the first thing to do when looking for ebook royalty payments
is to search for the periodic report or the deposits from Amazon’s KDP
Select Global Fund. As with all deposits to a bank account, the relevant
deposit should be visible on the bank account ledger entries. For many
who have been in probate and private client practice for many years it will
be second nature to obtain at least 8 years of bank statements. Usually,
this is for determining gifts or potentially exempt transfers for inheritance
tax purposes, but it is incredibly useful when tracing payments into an
account from self-publishing platforms, such Apple Books for Authors or
Amazon Kindle.
Once it has been established that the ebooks are active on the respective
self-publishing platform, each relevant platform will need to be notified
and a decision can then be made in respect of future royalty payments and
the future of the individual self-published ebook titles. For example, the
decision may be made to delete the ebook titles from the platform, which
may be appropriate where the royalty payments are minute and irregular,
causing more of an accounting headache than anything practical. If the
decision is to keep the ebook titles online, there will need to be a transfer
of the ownership of the individual titles. This may be a straightforward
matter, particularly where there is a sole beneficiary such as a surviving
spouse, but it may be more complicated where there are multiple
beneficiaries. In the event that there are multiple titles and multiple
beneficiaries, the personal representatives and/or executors will have to
seek guidance from the testamentary documents. In such cases, it is
invariably better for the rights to be left as individual legacies or
transferred into a suitable vehicle such as a trust, rather than divided
between multiple residual beneficiaries.
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