Your home, financial accounts, and personal property are not the only assets that belong in your estate plan. If you are an author, artist, photographer, inventor, business owner, software developer, or other creator, your intellectual property may also have significant financial and personal value.
Copyrights, patents, trademarks, royalties, and licensing rights can continue generating value long after the original work is created. Without proper planning, however, your family may not know what you own. They might also not know how to manage it or who should receive the associated rights and income.
Know What Intellectual Property You Own
Intellectual property can take many forms:
● Copyrights protect original works of authorship, such as books, photographs, artwork, music, software, and other creative works. Copyright protection generally arises when an original work is created and fixed in a tangible form. For most works created today, copyright protection generally lasts for the creator’s life plus 70 years.1
● Patents protect certain inventions and designs. Patent rights can be valuable assets, but they have limited terms and may require ongoing maintenance.
● Trademarks protect words, names, logos, and other identifiers used to distinguish goods or services. Federal trademark registrations can continue indefinitely if the mark remains in use and required maintenance and renewal filings are made.
Intellectual property can also generate royalties, licensing fees, or other income, making it important to address not only ownership of the underlying rights. In addition, you should determine who should receive future payments.2
Include Intellectual Property in Your Estate Plan
Start by creating an inventory of your intellectual property. Include registrations, pending applications, licensing agreements, assignments, royalty statements, publishing agreements, and other documents showing what you own. Also note how those rights are being used.
Your estate plan should then address who will receive those rights and who will manage them.
This distinction can be especially important with copyrights. Ownership of the physical object and ownership of the copyright are not necessarily the same. For example, giving someone an original painting does not automatically mean that person receives the copyright in the artwork.
If you want particular individuals or a trust to receive intellectual property rights, your estate planning documents should clearly reflect that intention.
Copyrights Require Special Attention
Copyrights deserve particular attention because they can survive for decades after the creator’s death. They may also continue producing royalties or licensing income.
Federal copyright law also provides certain authors and their heirs with rights to terminate some prior transfers or licenses during specific statutory periods.3 These rights are governed by detailed rules. Transfers made by will are treated differently in some circumstances.4
For creators with valuable copyrights or existing publishing, licensing, or other agreements, coordination between estate planning and intellectual property counsel can help ensure that the estate plan works with those rights. This avoids unintentionally interfering with them.
Plan for Patents and Trademarks
Patents and trademarks can also be transferred as part of an estate plan.
For patents, your records should identify the patent, its owner, any licensing arrangements, and responsibility for required maintenance fees. Ownership changes may also need to be recorded with the United States Patent and Trademark Office (USPTO).
Trademarks require ongoing attention as well. A trademark is connected to the goodwill of the business or goods and services it represents, so transferring the mark may require planning for the related business interests. Moreover, the new owner must also continue satisfying applicable use, maintenance, and renewal requirements to preserve a federal registration.5
Do Not Forget Royalties and Licensing Income
A book, photograph, invention, song, or other intellectual property may continue producing income long after its creator dies.
Your estate plan should address who is entitled to receive those payments and who will be responsible for managing the underlying rights. Publishers, licensees, agencies, and other companies making royalty payments may also need updated instructions after ownership changes.
For intellectual property with significant value or ongoing income, consider whether the person serving as personal representative (a/k/a executor) or trustee has the knowledge necessary to manage those assets. Alternatively, they should be able to obtain appropriate professional assistance.
Protect What You Created
Your creative work can become part of the legacy you leave behind.
If you own copyrights, patents, trademarks, royalty rights, or other intellectual property, make sure those assets are identified and coordinated with your estate plan. Clear instructions can help preserve their value. They will also ensure that future income reaches the people you choose and make it easier for your family to manage what you created.
Premier Legacy Law can help you incorporate intellectual property into your broader estate plan. They coordinate with intellectual property counsel when specialized advice is needed.
- U.S. Copyright Office, Copyright in General (explaining that copyright protection begins when an original work is fixed in a tangible form and that, generally, works created on or after January 1, 1978 are protected for the life of the author plus 70 years) ↩︎
- 17 U.S.C. § 202 (providing that ownership of a copyright is distinct from ownership of the material object in which the copyrighted work is embodied). ↩︎
- U.S. Copyright Office, Copyright Basics, Circular 1 (explaining statutory rights that may allow authors or their heirs to terminate certain prior copyright transfers or licenses under specified circumstances) ↩︎
- U.S. Patent and Trademark Office, Managing a Patent; Patent Essentials (explaining that patents are personal property that may be transferred or passed to heirs, as well as applicable patent terms and maintenance requirements). ↩︎
- U.S. Patent and Trademark Office, Trademark Manual of Examining Procedure § 501.01; Maintaining Your Federal Registration (addressing assignment of trademarks with associated goodwill and required federal trademark maintenance filings) ↩︎
