The Inadvertent Collector

We’re not buried with all our belongings these days. Collectors and artists – in every medium – may want to consider what happens to their stuff after they are gone.

“The future inadvertent collectors of the world do not look forward to assuming the mantle. Be gentle with them.”

Creating a collection is generally a long-term effort of accumulation, attention and editing. We tend to assume the collector has an affection – perhaps a passion – for the assembled objects.

Pity instead the person saddled – through death, divorce or chance – with a collection compiled and loved by another. It’s one thing to have initiated the collection, and quite another to have succeeded to it. The affection and passion are seldom as strong, leaving the inadvertent collectors wondering what they have and what they ought to do with it.

Recently, a colleague told me about his philatelist father whose entire estate took the form of 50,000 postage covers – some nearly worthless, some very valuable – all in disarray at the time of his death. Over the next two years, the son and a stamp expert met each weekend, to sort, catalogue, evaluate and dispose of the entire collection. Eventually, the proceeds from auction and other sales supported the collector’s widow for the rest of her life.

This collector had let fear drive his life for many years before his death: guests were not welcome in the family’s house because he could not trust people near his precious objects. His refusal to organize and catalogue the materials grew from his fears of theft and fire and his mistrust of the outside world. He preferred to hide his collection from visitors, from insurers, even from his family, believing that he’d lose track of it if others came in contact with it. As his health declined, his innate suspicion grew, so that an item mislaid came in his view to be an item stolen.

After his death, his son catalogued the collection, in part because he knew the family needed to get rid of it – he knew his father’s survivors would gain closure when the collection was out of their lives. But the costs were high. Not only had this collector bequeathed to his family the painful associations and financial uncertainty, but the cleaning-up process required the son to sacrifice time with his own growing family for two full years. This was an inadvertent collector who had inherited along with the collection, both fiscal and psychological mandates to catalogue and sell it.

What of the collection whose previous owner wanted it to stay together? Taxes and their implications can influence the decisions facing collector-inheritors. The children of art collectors, it is often noted, finding themselves in need of cash for the taxes and other affairs of the estate, will sell off works from their parents’ collection. These hurried sales sometimes wreak havoc with the remaining group of artworks when key pieces are converted to cash, some of it required, painfully, to retain the remaining impoverished group of works. These next-generation custodians of the collection are caught between forces they cannot reconcile.

Even more poignant can be the plight of an artist’s surviving spouse. The artist’s widow or widower can be faced with unexpected complications that must be dealt with on the same timetable as grief and estate tax returns. Time and again over the years I have met with the widows of artists, recently deceased. Each story brings its own poignancy. But each woman shares a bewilderment mingled with her sadness and pain.

Death came and took her husband, leaving quantities of his artwork behind. The work deserves to be seen, respected, cared for, studied. What is she to do? First things first: in time for the estate tax return to be filed, she needs to determine the value of the husband’s estate. In many cases, the inventory of completed artwork constitutes a majority of the entire value. The estate tax return is usually due nine months after the date of death – less than a year to figure out what everything he left is worth.

Evaluating the estate’s collection of the artist’s work is not easy. If the artist was not among the very famous, there are probably not many eager collectors and buyers lining up at the studio door. Probably there is no dealer actively making a market for the work, nor much of a recent auction history to point to for comparable values. That’s not to say the work is worthless, nor that there aren’t people out there who desire it. But it’s a big world, and without access to the right channels of commerce and connoisseurship, a mourning widow with a deadline may not have a good shot at meeting those potential collectors.

One way or another, often with the help of a private appraiser, the widow arrives at a valuation of the art left in the estate. Once that is determined, what is to be done with all of it? The tax laws do not control the pace of that disposition process, which can go on for many difficult years. If the widow dies without dispersing her inadvertently acquired collection, it becomes more likely the work will be lost or destroyed.

Artists’ executors can also run into problems. In the 1970’s, Johanna Bafaro gladly accepted responsibility as executor of the estate of painter-sculptor Jack Rabinowitz (1925 – 1974). “It is a beautiful body of work, but over the last twenty-seven years it has also become a burden,” she explains. With the recent success of the movie about Jackson Pollock, Lee Krasner and Rabinowitz’s other Abstract Expressionist compatriots of New York City in the Fifties, Ms. Bafaro sees new opportunities for Rabinowitz’s work. In another positive development, this February, Body Language, an exhibition of his paintings opened in New York City at Pardo Lattuarda Gallery. An illustrated catalogue is available.

Ms. Bafaro hopes that exhibitions, the catalogue, sales and word of mouth will spark renewed interest in Rabinowitz and his work. Meanwhile, his collected oeuvre can be found, mostly, in the New York City loft where Ms. Bafaro and her husband, author-playwright Mel Freedman, make their home. While they did not, technically, inherit Jack Rabinowitz’s life work, they have been its custodians for more than 25 years, underwriting the processes of organizing, photographing, cataloguing and conserving it, while continuing their efforts to market and sell it by developing public interest in the work.

Several years ago I got acquainted with an organization founded to reduce the load placed on many inadvertent collectors. Called Art in Perpetuity, it was established as a tax-exempt, nonprofit corporation, and its founder and director began searching for funding. Things have been gathering steam recently, and a transition to a new executive director is underway.

Its mission seems so commendable: it wants to forge ties with institutions throughout the United States to create long-term installation opportunities for works of art by artists who are dedicated to their work regardless of financial benefits. The organization seeks to assist older artists and artists with AIDS – people aware of their mortality who want to make arrangements for the care of their artwork while there is time.

Joyce Rezendes, its founder, says she got the idea for Art in Perpetuity in the 1970’s at an exhibition at the Tate Gallery in London. “A tiny, subtle Turner gouache of just three strokes showed that his executor had a fine sensitivity, to rescue what might have been seen as a useless scrap of paper.” Ms. Rezendes developed from that moment of recognition a dedication to do what she could to provide other artists with some assurances that their work will be cared for after they have gone.

Art in Perpetuity wants to continue the life cycles of works of art, by assisting the artists with their planning, and addressing the concerns of inadvertent collectors who succeed to the artwork of another. So did a successful photographer who met with me last year. She had been taking photographs for decades and had met with acclaim: museum shows, coffee-table books, publicity. She was getting older and wanted to know her own collection of prints, negatives, working notes, etc. would be held somewhere, organized and available for students, scholars and curators. She did not want to expend a lot of her own money for this, nor did she want to give it all away only for the recipient to sell portions of it to maintain the rest. Also, if she gave it away to a museum or library, she would barely gain any tax advantage – the tax laws on charitable giving of art and other creative work discriminate against its makers.

For the past several years, legislators in Congress have introduced bills, so far without success, that would restore to writers, composers, artists and scholars the right to make gifts to cultural institutions of their work and take an income tax deduction for the current market value of the contributed work. This legislation, called the Artist-Museum Partnership Act, is attempting to undo a switch in public policy introduced in the Tax Reform Act of 1969. The 1969 law redefined original work donated by its creator as “ordinary income property” thus eliminating the tax benefit for the artist-donor.

For example, a collector who bought a painting years ago for a pittance is entitled to give that work to an appropriate museum that wants it and take an income tax deduction for the current fair market value of the art. The donor’s actual cost is not relevant. The only figure that matters is what the work would sell for in the open market as of the date of the gift. The rules were changed in 1969, however, for cases where that donor is the artist who made the work. In those cases, under current law, the artist-donor can only deduct the cost of materials – what the canvas and stretcher and paints actually cost. This can be a huge difference in benefit: A collector bought a work in 1955 for 750 dollars; the work is now worth $750,000.00. The artist kept a companion work, comparable in every way. If they both give these paintings to museums this year, the collector gets a $750,000 tax deduction and the artist gets a deduction worth maybe $75. Hmmmm.

In other words, our tax structure does not encourage artists to make gifts of their work to museums and libraries during their lifetimes. So, a lot of the time, they don’t. Instead, the works accumulate and accumulate and artist and loved ones together try to ignore the inevitable reckoning that looms in the nine months following the artist’s death.

Last year, the IRS reportedly determined that the loss to the public coffers resulting from enacting the new legislation would be negligible, about $48 million over ten years. Affected would be contributions of “literary, musical, artistic or scholarly compositions or the copyright thereon, or both,” created by the donor.

The impact of the 1969 law is harder to measure but undoubtedly colossal. Over the past thirty-odd years surely billions of dollars worth of literary manuscripts, musical scores, paintings, drawings, sculptures, photographs, films, videos, choreographic documentation, research papers and more have not been given by their makers to the museums and libraries that might have provided the best homes, the best care, the best public access, in short, the best uses of the materials.

There are other reasons, too, why creative people refrain from whittling down their collections of their own output. For one thing, it can be disheartening for the artist to have to entreat a museum or university to accept some work. Also, styles of art go in and out of vogue: one year’s gold is another year’s dross. An artist who makes what has become unfashionable will often not sell much, but will often doggedly continue to produce nonetheless. Understandably, not every creative person wants to twist and turn when fashion does.

Sometimes an artist will include a provision in his or her will, establishing an artist’s foundation after death. Andy Warhol is one artist who did. While his estate was not troubled by the problems a lesser-known artist’s work might meet with, the estate was saddled with enormous quantities of artwork made by the artist and his studio assistants, plus prodigious collections of objects and artifacts Warhol had been assembling quietly for decades. The foundation’s mandate was very vague, but it did have marketable assets, and over the years, after auctions and private sales and diligent archival research (and numerous billable hours for teams of lawyers) the inheritors and administrators have begun to reduce and stabilize their load.

For an artist with a critical following but no mass success, a testamentary foundation can create as many problems as it tries to resolve. I know of one such organization, operated on a shoestring by close friends and associates of the deceased artist, tasked under the terms of his will with maintaining his rustic country home and studio, opening it to the public as a museum, preserving, cataloguing and exhibiting the art left in the estate, and promoting his work and reputation worldwide. Had the tax laws been different, would this artist have arranged to contribute the bulk of his work to museums? Perhaps. But as it is, his foundation has become another inadvertent collector.

What can you do? You can consider the crucial role of individual philanthropy in this country and contribute what you can – in money, property and volunteered services – to the cultural institutions you favor. Would the proposed repeal of the federal estate tax discourage private charitable giving to museums, libraries, stages and universities? If you believe it would, speak up so that your Senator and Congressional Representative know your opinion. Do you want to see the passage of the Artist-Museum Partnership Act? If so, let them know in Washington DC.

If you are a an artist, writer, composer, scholar, performer or other creative person with collections of papers, recordings, tapes, costumes, paintings, maquettes, etc., from a lifetime of work, think through with your associates and loved ones how you intend to dispose of all that stuff. Some of the Resources listed below may be helpful starting places.

If you are a collector, catalogue your holdings, as a first step. Then apply some of your affection for the collections to planning for their care and disposition when your time with them has passed. Be practical, not wishful, and see what makes sense. The future inadvertent collectors of the world do not look forward to assuming the mantle. Be gentle with them.

Resources

The Estate Project maintains archival programs for art created during the AIDS crisis. See their site at http://www.artistswithaids.org

An informative book, A Visual Artist’s Guide to Estate Planning, is available from the Margery Walsh Sharpe Art Foundation [Updated Link] http://sharpeartfdn.qwestoffice.net/estateplnbook/estateplanning.htm. The book contains detailed contributions from artists, curators and attorneys.

The Estate of Jack Rabinowitz can be reached in care of Johanna Bafaro at [Old Address].

Art in Perpetuity’s director is Joyce Rezendes, who can be emailed [Old Address]

The Artist-Museum Partnership Act was introduced in the US Senate, as S. 2781, on 23 June 2000. The text of the bill is available by searching for S. 2781 at  [Old Link] http://thomas.loc.gov [Updated Link to 2009 version, still not enacted, http://www.govtrack.us/congress/bill.xpd?bill=h111-1126]

For more about the legislation see Christopher French, “Giving Artists Reason to Give,” ArtNews, March 2001, p 64.

The Andy Warhol Foundation for the Visual Arts has its website at http://www.warholfoundation.org/

Some wealthy philanthropists oppose the repeal of the federal estate tax, as proposed by the Bush administration. [Old Link] http://www.theartnewspaper.com/news/article.asp?idart=4756

Consult the Library of Congress for contact information about your Senator and Representative. Find your Representative in this directory of all Representatives to Congress: [Updated Link] http://clerk.house.gov/member_info/olm111.html

Find your Senator in this list: http://www.senate.gov/general/contact_information/senators_cfm.cfm

First published, Fall 2000.  Arts4All Newsletter Issue 16.

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