Landlord vs. Descendants: Who Has Right to Artist’s Estate?

February 23, 2022Media Mention

Benny Roshan, chair of the Probate, Trusts & Estates Litigation group, shared her legal perspective regarding the estate of Henry Darger, a janitor turned artist, which consists of valuable pieces of art that were discovered by his landlords, Kiyoko and Nathan Lerner. The Lerners had his work shown to a collector, which helped catapult him into becoming a world-renowned artist. While the question of who the work belongs to is still looming, Darger’s potential relatives have filed a “petition for determination of heirship” in an Illinois probate court to help determine who the assets should be transferred to. Roshan believes that the transfer of art will be simpler than that of the intellectual property assets.


“In Legally Blonde, Elle Woods famously stated, ‘the rules of hair care are simple and finite.’ Truer words have never been spoken. The rules of wealth transfer where a person dies intestate (without a will or trust) are typically also simple and finite. Once in a blue moon, however, we get a super complicated probate that intersects with federal law a la the copyright issues in Darger’s estate.”

“For starters, all U.S. states have default rules in intestacy cases. For example, in New York the default rule is that if you die intestate, your wealth escheats to the state and a legal heir must petition the court to inherit from the intestate decedent. In direct contrast to that, in Illinois (where Darger resided and died) the default rule favors legal heirs and an intestate decedent’s estate passes to their legal heirs and only escheats to the state when the decedent also dies without any legal heirs. There are no time limits for filing a petition to determine heirship or opening up a probate. A probate can be opened anytime an asset (valued at above the small estates exemption amount) is discovered.”

“By filing a petition to determine heirship, Darger’s relatives are trying to inherit Darger’s estate assets. The complication in Darger's estate arises from the copyright issues baked into his probate. Darger is not your average intestate decedent who dies with simple assets (real estate, cash, securities, etc.). Darger’s estate primarily consists of valuable art and intellectual property. Darger’s collectible art can be marshaled and appraised, etc. and an argument can be made that he bequeathed them to Mrs. Kiyoko by remarking to her that she can dispose of them following his passing. His intellectual property assets, on the other hand, will be more complicated,” Roshan concluded.

Read the full article here.