The term “Intellectual Property” refers to a wide range of work resulting in an ownership right by way of a copyright, patent, trademark, manuscript, design, residuals, artistic work, literary work, inventions and many others. Intellectual property, or “IP”, may be the most valuable asset in an estate, but is also the easiest to overlook.
The first step in protecting your IP must be done during life by properly registering with the United States Patent and Trademark Office or other city, county or state office of records. This is a process that often requires legal counsel, fees and a wait period. However, once you complete the process you have a potentially valuable asset that may be enjoyed by your loved ones for generations to come. Artistic works, acting, writing, producing and directing residuals are typically protected by a union and managed by your agent or manager, but many of these rights may also be registered and protected during life. An experienced IP attorney can help you with this process.
The second step in protecting your IP is completing a comprehensive estate plan with an experienced trusts and estates attorney. You must always consider your IP an asset, just as you would your property, bank accounts, retirement funds, vehicles, jewelry and art. Your estate attorney must be aware of your IP assets in order to properly plan for them.
In planning for your IP in your estate first ask yourself if there is a particular person in your life who is qualified or experienced in protecting the type of IP you have. If so, consider nominating that person as the special trustee over your particular IP assets. This ensures that deadlines to renew copyrights/trademarks/patents are met and that the proper person is in place to protect your IP after your death. Next, consider obtaining a valuation of your IP. This will help your estate planner avoid any tax issues that may arise if your IP is valuable. Finally, ask yourself if there is a particular beneficiary (family member, friend, charity or other organization) that may get the most use or benefit out of your IP asset. If you do not leave your IP to a particular person, it will likely be considered a “residual” asset and distributed according to the general instructions in your trust. This puts your IP at risk of being sold, under-used, unprotected or even lost.
In sum, my advice is “don’t forget your intellectual property!” Your IP may not come with a statement of account every month, but that doesn’t mean it’s not valuable. Intellectual property rights are special assets and should be treated as such.
As always, this blog is not intended as legal advice for any person or situation and should not be construed as such. You must meet with an experienced estate planning attorney (and IP attorney!) to properly plan for these assets.