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Do I Need to Include Intellectual Property in My Estate Plan?


When a famous singer dies, you often hear news reports about the legal fate of their song catalog or other “intellectual property” (IP) rights. Many of us do not consider IP when making our own estate plan. But even if you never became a millionaire writing books or inventing new technologies, you might still possess certain IP rights that you wish to leave to your children or other beneficiaries as part of your will or trust.

What Is Intellectual Property?

IP is a term that refers to the legal rights individuals (or corporate entities) possess in the expression of ideas. The three most common forms of IP in the U.S. are copyrights, patents, and trademarks (or service marks). Each follows a distinct set of rules, which are mostly governed by federal law:

  • Copyright applies to “original works of authorship fixed in any tangible medium of expression,” such as books, musical compositions, videos, paintings, or sculptures.
  • Patents cover “new and useful” processes, machines, designs, or varieties of plants.
  • Trademarks and Service Marks refer to any “word, name, symbol, or device” used in connection with the sale of a product or service; “Coca-Cola,” for example, is a trademark used in connection with the sale of a particular soft drink.

In the context of estate planning, it is important to understand how long each of these forms of IP protection will continue:

  • For works created after 1978, a copyright held by an individual lasts until 70 years after the author’s death.
  • Patents that protect inventions usually last 20 years from the date the patent application was filed, while patents protecting nonfunctional designs last 14 years from the date they are issued.
  • Trademarks and service marks can last indefinitely but must be renewed at the federal level every 10 years.

Let’s say you wrote a book in 2012. The copyright on that book would continue in force until 70 years after your death. That means your estate and heirs would have the legal right to enforce that copyright in the event of any future infringement.

Along similar lines, let’s say you developed a product with a particular brand name. The trademark associated with that product continues to exist after your death, and can be renewed provided your estate or heirs keep selling the product and file the proper paperwork.

So if you do have any IP, it is important to take that into account when making your estate plan. It may be a good idea to obtain an independent appraisal of your IP’s value as part of this process. And a qualified Fort Myers estate planning lawyer can advise you on the best way to structure a will or trust to deal with your IP and other forms of property.

Contact the Kuhn Law Firm, P.A., at 239-333-4529 today to schedule a free, no-obligation consultation with a member of our estate planning team.


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