An artist’s estate designates everything left behind by an artist: the works, and the rights attached to them. Organising and structuring the estate is what allows an artist’s work to be properly showcased and to succeed commercially. This structuring lies at the heart of supporting artists’ successions. It begins with anticipation by the artist during their lifetime and continues through posthumous management by their heirs and successors.
What Is an Estate?
Under French law, the term “estate” has no legal definition of its own. It refers to an artist’s succession, combined with the idea of durable structuring. In practice, this structuring is built around an organised co-ownership arrangement, an association, an endowment fund (fonds de dotation), or a foundation. The aim, in each case, is to preserve, exploit and promote the artist’s work. When a gallery announces that it represents an estate, this typically signals one thing: the gallery holds exclusivity over the sale of the artist’s works. Structuring an artist’s estate means bringing together the artist’s heirs and successors. It also means choosing the legal vehicle best suited to preserving and exploiting the work, whether an organised co-ownership, an association, an endowment fund, or a foundation.
What Does an Estate Consist Of?
An estate consists of a visual artist’s body of work. Whether the artist is a painter, a sculptor, or works across several media, the body of work covers two dimensions. First, a material dimension: the works, sketches and archives (plans, correspondence, research notes). Second, an intangible dimension: copyright.
The intangible dimension of the estate rests on copyright, divided into two sets of rights. Economic rights allow the works to be reproduced, performed and distributed. They subsist for seventy years from 1 January of the year following the artist’s death. After that period, the work enters the public domain. In addition, the resale right (droit de suite) allows a percentage of the price to be collected whenever a work is resold. This applies whenever the resale involves an art market professional. This right passes to heirs, excluding legatees, for the same period of seventy years.
Moral rights allow the exploitation of the work to be controlled, so that it remains consistent with the artist’s intentions. They comprise three prerogatives. The right of attribution ensures the artist’s name is credited alongside the work. Preventing any distortion of the work falls to the right of integrity. Control over the first public presentation of an unpublished work belongs to the right of disclosure. Unlike economic rights, moral rights are perpetual, inalienable, and pass to heirs. As a result, they are often the most durable foundation of an estate’s action.
Who Makes Up the Estate?
The estate is made up of the person or persons who have inherited the body of work. This may be the artist’s spouse, children, other heirs, or legatees named in a will.
Each of these persons may hold their share under undivided co-ownership (indivision) or be a full owner. Similarly, some may have inherited the copyright, or only part of it, such as the right of disclosure. Others, meanwhile, inherit the body of work itself.
To allow the work to be exploited, these heirs and successors need to be brought together. This helps ensure the artistic legacy is disseminated on the best possible terms, without disagreement between the different stakeholders.
The estate may also bring together people the artist trusted, or who share an intellectual affinity with the work. This can include an art historian, a critic, a dealer, or a fellow artist.
How to Organise an Artist’s Estate?
Every artist’s succession is unique, both in the work it carries and in the people who make it up. Careful thought must therefore be given to the most suitable form for the estate. In particular, this means considering the legal vehicles available for exploiting the body of work.
The artist’s heirs and successors may be brought together under a co-ownership agreement (convention d’indivision). Setting up an autonomous legal structure, however, can also allow for stronger development.
Organising the estate is most often carried out with the help of a specialised Attorney. The Attorney guides the heirs and successors in light of the body of work and its development prospects.
What Legal Vehicles Can Support the Development of an Estate?
An artist’s estate can be embodied by an autonomous legal entity.
Using such an entity allows third parties to identify a regular point of contact. It may be a non-profit, such as an association, an endowment fund, or a foundation. This can open the door to certain tax advantages. This type of vehicle is effective for giving the artist’s work institutional visibility.
A for-profit entity, such as a civil or commercial company, may also be set up. Its purpose is to optimise the commercial exploitation of the work.
Transferring works or copyright to a structure is never neutral. It carries tax consequences, such as transfer duties, the tax treatment of income, and potential eligibility for the advantages attached to non-profit structures. It also carries governance consequences: the heirs and successors relinquish assets to the legal entity, and questions of operating rules and control of the structure then arise.
The choice of vehicle and the structuring of the contribution must therefore be considered together. This choice is most often made with the help of a specialised Attorney, who advises on the most suitable structures.
When Should the Estate Be Organised?
An estate can be organised at any time, but anticipation by the artist helps avoid a great many difficulties.
Anticipating one’s succession secures it in advance and helps avoid disputes between heirs and successors. Above all, it allows the artist to choose the people who will carry the estate forward after death. It also makes it possible to anticipate difficulties liable to arise during the posthumous exploitation of the work, such as which works may be disclosed, or whether limited editions may be exhausted. It also makes it possible to put in place a legal vehicle intended to receive part of the artistic estate on the artist’s death. This might take the form of a foundation or an endowment fund.
Once the artist has died, the succession most often brings together several heirs, and two recurring difficulties arise. The first concerns the valuation of the estate and the payment of inheritance tax. This tax must, in principle, be declared within six months of death. Valuing the works is a delicate exercise, with significant tax implications. Where the succession is rich in works but short of liquidity, the dation en paiement mechanism offers a solution. It allows inheritance tax to be settled through the transfer of works to the French State, subject to their acceptance.
The second concerns co-ownership. Unless specific bequests are provided for in a will, heirs find themselves in undivided co-ownership over the entire estate. This includes both the works and the rights. This unchosen co-ownership can lead to deadlock, since every management or disposal decision requires agreement. A co-ownership agreement, setting out governance and decision-making arrangements, can help prevent such situations. So too can the appointment of an agent.
Structuring after the artist’s death can take place in the months following death. It can equally happen at any later point, once the heirs and successors, or third parties wishing to carry the estate forward, drive a momentum of valorisation.
How Are an Estate’s Works Authenticated?
Authenticating works is one of an estate’s central tasks. It involves ruling on whether a work should be attributed to the artist. This is done through the issuing of inclusion opinions or certificates of authenticity, and through the compilation of a catalogue raisonné listing the artist’s work. This task governs the circulation of works on the market and the scholarly coherence of the body of work.
Authentication may be carried out by one or more heirs, or by a recognised expert. It may also fall to an artist’s committee set up for that purpose. The way this function is structured is decisive: its composition, legal form, operating rules, and authentication doctrine all matter. Together, they determine the credibility of the authentication itself, and the liability of those who exercise it.
Ruling on a work’s authenticity, or refusing to include it in the catalogue raisonné, is not without risk. Either decision can expose the person making it to challenge. French law grants the author of a catalogue raisonné, and the person issuing a certificate, considerable latitude of judgment. Even so, the exposure to liability remains real, and this justifies precisely framing the function.
What Are an Estate’s Sources of Income?
An estate draws its income from several sources. The mix varies according to the artist’s renown and the composition of the body of work:
- the sale of works held by the estate, often through a gallery;
- the exploitation of economic rights: reproductions, editions, licences, exhibitions, partnerships;
- the resale right collected on resales;
- philanthropic support and funding attached to a non-profit structure.
This income funds the tasks the estate has set for itself. These include the conservation and restoration of the works, archiving, compiling the catalogue raisonné, organising exhibitions, and defending the rights.
Does Organising an Estate Have an International Dimension?
The art market is a global one. An artist’s works circulate between collectors, institutions and auction houses in several countries. As a result, representation may be entrusted to a foreign gallery, or shared between several galleries.
The involvement of a specialised Attorney, such as those at Fournol & Associés, allows the estate to be supported across all of these matters. This support extends both to France and abroad. Where a matter calls for action outside France, Fournol & Associés draws on a network of foreign fellow lawyers with whom the Firm works closely. This network helps the Firm best defend the interests of the estates it advises.
How Should the Estate’s Relationship With a Gallery Be Structured?
The relationship with a gallery is an important moment in the life of an estate. It is the gallery that provides the institutional and commercial momentum generating income. This income, among other things, funds the estate’s projects. A gallery also often benefits from an institutional network. This network allows exhibitions to be organised in museums, art centres, or other commercial venues.
For an estate to be properly represented, the gallery must be confident it can carry out the work over several years. Showcasing an estate takes time, most often between five and ten years. Representing an estate is therefore an investment for the gallery. Presenting an identifiable and stable structure is accordingly reassuring for this key player in the art world. This relationship is formalised through a contract binding the heirs and successors who own the body of work.
Who Are an Estate’s Other Points of Contact?
The Adagp and the Saif, France’s copyright collecting societies, are also key points of contact in France. The artist may not have assigned their copyright to either body during their lifetime. If so, doing so at this stage may be worth considering. These organisations collect copyright royalties, defend them in the event of infringement, and can offer useful advice.
An estate also deals with the notaire handling the succession. If the works need to be insured, it may be useful to engage an insurance broker. An accountant can likewise prove useful where the valuation is substantial. Fournol & Associés has built a network of experts who regularly support its clients, including artists’ estates.
Why Instruct a Specialised Attorney When a Notaire Is Already Involved?
The notaire has a general knowledge of succession law, and of the wealth and tax issues at stake. These issues are especially significant at this key moment for an artist’s estate. However, the notaire rarely has a client base made up of artists, galleries, foundations or collectors. A specialised firm such as Fournol & Associés, by contrast, has an in-depth understanding of the art world, the art market, and copyright law.
The Attorneys at Fournol & Associés often work alongside the artist’s or the estate’s notaire. In doing so, they bring their specific expertise to the treatment of the body of work. This is a genuine collaboration, and the complementary work of the notaire and the Attorney benefits the estate. Within the succession, the Attorneys of Fournol & Associés make it possible to plan for medium- and long-term structuring. As a result, an artist’s succession is not treated as a mere ordinary succession.
By Simon Rolin, Attorney at the Paris Bar, Partner of the Firm.
As part of its practice in inheritance and estate law, Fournol & Associés works in particular in copyright law and art tax law. The Firm advises artists during their lifetime, as well as their heirs and successors, on the structuring, valorisation and defence of the estate.
