Artist estates, succession, art market

Artist estates in France: 5 mistakes to avoid

An artist's estate combines three dimensions that heirs rarely handle together: the conventional assets (unsold works, real estate, cash), the author's rights (perpetual moral rights under article L. 121-1 of the French IP Code; economic rights lasting 70 years after death, article L. 123-1) and the physical corpus of the studio (archives, maquettes, correspondence). French inheritance tax is payable within 6 months of death (French Tax Code, art. 641): without planning, fiscal pressure drives families to sell off the studio in a hurry, often for less than half of the long-term market value. Drawing on its practice, the firm identifies five recurring mistakes and the remedies available: instalment payment, dation in payment, a dedicated executor, an endowment fund.

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— En bref
Topic
The 5 recurring mistakes in artist estates in France, and their remedies
For whom
Heirs of an artist, surviving spouses, executors, international collectors and artist families
Key provisions
CPI art. L. 121-1 (moral rights), L. 122-8 (resale right), L. 123-1 (70 years); CGI art. 641, 764, 1716 bis, 1717
Critical deadline
Inheritance tax payable within 6 months of death (CGI art. 641)
Planning horizon
Ideally 10 to 15 years before the transfer: will, executor, long-term structure
— 01

Why an artist estate is not an ordinary succession

Three features make an artist's estate a singular legal object under French law. First, moral rights are perpetual, inalienable and imprescriptible (CPI art. L. 121-1): they survive the artist indefinitely and pass to the heirs. The right to the integrity of the work and the right of attribution are transmitted; the right of withdrawal and reconsideration, by contrast, is extinguished on death (CPI art. L. 121-4), and the right of disclosure of posthumous works follows its own order of devolution under article L. 121-2: the executor designated by the artist, failing that the descendants, then the surviving spouse who has not remarried, then the other heirs.

Second, the resale right (droit de suite, CPI art. L. 122-8) generates income for the 70 years following death: it is due on any resale of an original work in which an art market professional acts as seller, buyer or intermediary (auction house, gallery, dealer), and not only on public auctions. It applies once the resale price reaches 750 euros, on a degressive scale (4 % up to 50,000 euros, 3 % from 50,000 to 200,000 euros, down to 0.25 % above 500,000 euros), capped at 12,500 euros per sale (CPI art. R. 122-6). Since the LCAP Act No. 2016-925, the resale right can be transferred by legacy, in particular to a museum or a foundation (CPI art. L. 123-7, as amended).

Third, the studio forms a unique material and symbolic estate: unsold works, maquettes, sketches, archives, correspondence. This corpus underpins the memory of the work, future authentication and the secondary market value over several decades. An improvised succession disperses it, depresses prices and exposes the heirs to disputes with dealers, foundations and institutions.

The firm deliberately takes on a limited number of matters in order to guarantee the direct involvement of its partners on each file, and systematically assesses the relevance of its intervention before any engagement.

— 02

The 5 recurring mistakes, one by one

01

Mistake 1: dispersing the studio under fiscal pressure

Inheritance tax falls due within 6 months of death (CGI art. 641). Lacking liquidity, many heirs sell in a hurry, often for less than 50 % of the long-term market value.

  • Consequences: irreversible dispersal of the corpus, oversupply, lasting depression of prices as perceived by dealers and galleries
  • Instalment payment of the tax (CGI art. 1717; ann. III art. 396 to 404 GD): equal instalments over 1 year at most (3 instalments maximum), extended to 3 years (7 instalments) where at least 50 % of the estate consists of non-liquid assets, with interest
  • Dation in payment (CGI art. 1716 bis): transfer of one or more works of high artistic or historical value to the French State to settle the tax, subject to approval
  • Bank financing secured on other works or on real estate, to spread sales over time
02

Mistake 2: leaving the moral rights unorganised

With multiple heirs, every authorisation (exhibition, restoration, reproduction) may require unanimous consent: management quickly grinds to a halt.

  • The right to the integrity of the work and the right of attribution pass to the heirs; the right of withdrawal and reconsideration is extinguished on death (CPI art. L. 121-4)
  • The right of disclosure of posthumous works follows the order of article L. 121-2 of the CPI: the executor designated by the artist, failing that the descendants, the spouse who has not remarried, then the other heirs
  • Remedy: appoint by will an executor entrusted with the moral rights (a child, the spouse, a trusted third party), with clear decision-making rules
  • Without organisation: paralysed authorisations, family disputes, lost museum and publishing opportunities
03

Mistake 3: underestimating the archives and documentation

Correspondence, studio photographs, notebooks, old contracts: the documentary value often exceeds the direct market value.

  • Archives make it possible to authenticate works (provenance, dating) and to build the catalogue raisonné, the market's reference
  • They feed academic research and support market value over 50 to 100 years
  • Frequent mistake: sorting and destruction in the weeks following death, or dispersal in several auction lots
  • Remedy: entrust the archives to a dedicated endowment fund or deposit them with a cultural institution under a conservation and access agreement
04

Mistake 4: overlooking contracts signed during the artist's lifetime

Galleries, publishers, dealers, foundations: contracts in force pass, in principle, to the heirs unless otherwise stipulated.

  • Contracts to inventory: gallery exclusivity, consignment sales, publishing agreements (books, multiples, lithographs), consignments, rights of first refusal, loans
  • Ignoring them invites litigation: a gallery asserting resale exclusivity, a publisher claiming promised works, an assignee invoking the original contract
  • Remedy: a complete contractual audit within 3 months of death, coordinated between lawyer and notary
  • Objectives: identify residual obligations, secure deliveries in progress, negotiate exits where needed
05

Mistake 5: providing no long-term structure

Without a dedicated structure, the governance of the work depends, 30 to 50 years on, on heirs increasingly removed from the artist.

  • Endowment fund (fonds de dotation, 2008 LME Act): initial capital of 15,000 euros, quick to set up, flexible governance; suited to most contemporary artists and to the conservation of archives
  • State-approved public-interest foundation (fondation reconnue d'utilité publique): in practice an endowment in the region of 1.5 million euros and a lengthy approval process; reserved for major bodies of work with a broad philanthropic programme
  • Studio-museum or agreement with an existing institution: long-term deposit, staged gifts, permanent display (Brancusi, Giacometti, Soulages in Rodez)
  • These arrangements are prepared during the artist's lifetime, ideally 10 to 15 years before the transfer
— 03

Our approach

The firm advises artists during their lifetime and heirs of artists across the entire succession chain: planning (tailored will, executor entrusted with the moral rights, choice of long-term structure, tax calibration), execution (studio inventory, valuation, contractual audit, negotiation with galleries and institutions, dation in payment applications) and the long term (governance of the endowment fund or foundation, resale right, moral rights litigation, management of the archives). The analysis dovetails with the taxation of collection transfers and with philanthropy, including for international families with assets in several jurisdictions.

  • Artist estate
  • Moral rights
  • Resale right
  • Dation in payment
  • Endowment fund
— FAQ

Artist estates in France: your questions

Can moral rights be assigned or sold?

No. Moral rights are inalienable and imprescriptible (CPI art. L. 121-1): they cannot be assigned, whether for value or gratuitously, and pass only on death. Their components do not all follow the same regime: the right to the integrity of the work and the right of attribution pass to the heirs; the right of withdrawal and reconsideration is extinguished on death (CPI art. L. 121-4); and the right of disclosure of posthumous works follows the specific order of devolution of article L. 121-2 (designated executor, failing that the descendants, the spouse who has not remarried, then the other heirs).

Can the heirs prohibit an exhibition of works already sold?

Not as such. The right to the integrity of the work allows the heirs to object to a presentation that would distort the work: truncated display, abusive restoration, altered reproduction. They cannot, however, prohibit a good-faith exhibition organised by the owner of a lawfully acquired original. The dividing line is assessed case by case, and an exhibition charter negotiated upstream with institutions avoids most disputes.

When is the French resale right due, and how much does it yield?

The resale right is due on any resale of an original work in which an art market professional acts as seller, buyer or intermediary (CPI art. L. 122-8): auction sales, but also gallery sales or sales through a dealer. It applies once the price reaches 750 euros, on the degressive scale set by article R. 122-6 of the CPI: 4 % up to 50,000 euros, 3 % from 50,000 to 200,000 euros, then decreasing bands down to 0.25 % above 500,000 euros, with a cap of 12,500 euros per sale. An exception covers resales below 10,000 euros made within 3 years of a purchase directly from the artist (CPI art. R. 122-4). For an artist with a regular secondary market, the resale right commonly yields 5,000 to 30,000 euros a year for the beneficiaries.

Can the resale right be bequeathed to a museum or a foundation?

Yes, since the LCAP Act No. 2016-925 of 7 July 2016, which amended article L. 123-7 of the CPI. The artist may now transfer the resale right by legacy, notably to a museum or a public-interest foundation, whereas the previous wording reserved it to the legal heirs. This is a useful lever to fund a structure dedicated to the artist's work on a lasting basis, by allocating to it a recurring income tied to the secondary market.

How is an artist's studio declared for French inheritance tax?

Valuation rests primarily on the evidence hierarchy of article 764 of the CGI: the price fetched at a public sale held within 2 years of death prevails (764, I-1°); failing that, the value results from a notarial inventory (764, I-2°) or from the parties' detailed declaration. Commissioning two experts to establish a median value is a recommended practice to secure the valuation, but not a legal requirement. For works of art covered by an insurance policy, the taxable value cannot be lower than 60 % of the insured value (CGI art. 764, II). A piece-by-piece inventory within 6 months of death remains the best protection against a later challenge.

Does the 5 % household furniture allowance cover the artist's works?

Not the studio stock: unsold works forming the artist's professional inventory do not fall within the 5 % lump-sum allowance for household furniture and must be valued separately. However, works that furnish the deceased's home may qualify as household furnishings and be included in the allowance, as the French Supreme Court has accepted (Cass. com., 17 October 1995). The dividing line depends on the actual use of the works at the date of death; it is worth documenting, as the difference in taxable base can be considerable.

How can the inheritance tax be paid without a fire sale of the studio?

Three levers can be combined. Instalment payment (CGI art. 1717; ann. III art. 396 to 404 GD) allows the tax to be paid in equal instalments over 1 year at most (3 instalments maximum), extended to 3 years (7 instalments) where at least 50 % of the estate consists of non-liquid assets, with interest. Dation in payment (CGI art. 1716 bis) allows, subject to approval, a work of high artistic or historical value to be transferred to the French State in settlement of the tax. Finally, secured financing against part of the works or the real estate buys the time needed to sell in successive lots and protect prices.

Which structure should be chosen to perpetuate a contemporary artist's work?

For most situations, the endowment fund (fonds de dotation, 2008 LME Act): initial capital of 15,000 euros, quick incorporation, flexible governance, and the ability to hold the archives, a selection of works and, by legacy, the resale right. The public-interest foundation requires in practice an endowment in the region of 1.5 million euros and a 12 to 18 month approval process; it is warranted for major bodies of work with an international programme. The studio-museum and the deposit agreement with an existing institution complete the range. The choice depends on the corpus, the resources and the family's expected involvement.

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