Your home, bank accounts, and vehicles are not the only assets that deserve attention in your estate plan. Intellectual property, and any rights or income tied to it, should be on the list. You do not have to be a bestselling author or well‑known inventor to own valuable IP that could benefit your loved ones after you are gone. Intellectual property generally covers creative works and inventions protected by copyrights, patents, trademarks, or similar rights. Think books and articles, photos and artwork, music, software and code, inventions, brand names, logos, and online content. These assets can carry significant economic and sentimental value, and they need thoughtful planning to ensure they are protected, managed, and transferred the way you intend.
Take Steps to Protect Your Intellectual Property
Different categories of IP are protected in different ways. Consider the following:
Copyright protects “original works of authorship,” such as writings, music, software, photographs, films, and architectural works. Protection arises when you create the work; publication is not required, though it often increases commercial value. Registration with the U.S. Copyright Office is necessary to bring an infringement lawsuit, and using the © symbol provides public notice. In most cases, copyright lasts for 70 years after the creator’s death; different rules apply to works made for hire or works owned by a business.
Patents can protect “any new and useful process, machine, manufacture, or composition of matter,” as well as qualifying improvements. Patent types differ based on the invention. Eligibility is strict as public disclosure before filing can jeopardize rights, so conduct a comprehensive patent search, and consider working with a registered attorney or agent to prepare and file with the USPTO. A utility or plant patent generally lasts 20 years from filing; a design patent runs 15 years from grant. Utility patents require maintenance fees; design patents do not.
Trademarks typically cover brand names and logos that identify the source of goods or services. Using a mark creates limited common‑law rights in the geographic area of use; state registration extends those rights statewide. For nationwide protection, apply to register with the USPTO. Before you file, clear the mark through a thorough search to avoid conflicts. Use the TM symbol for unregistered marks and the ® symbol once federally registered, both of which put others on notice. Federal registrations initially last 10 years and can be renewed for successive 10‑year periods if use and maintenance filings continue.
How to Include Your Intellectual Property in Your Estate Planning
Add IP to your planning checklist. Give your estate planning attorney a complete inventory of your IP along with registrations, applications, assignments, licenses, royalty statements, and ownership records so your plan can address both management and transfer.
Copyrights
Address both the physical work (for example, the manuscript, painting, or master recording) and the copyright itself in your documents. They are separate property interests, and if you do not designate them clearly, the physical item could go to one person while the copyright passes under a residuary clause to someone else, potentially creating conflict and unexpected tax results. U.S. law also grants creators a statutory right to terminate most transfers or licenses after a set period; after death, that termination right passes to a surviving spouse and children. This right cannot be waived in advance by contract. Transfers made by will are generally excluded from these termination rules, but that does not automatically make a will superior to a trust for copyrights. The best approach depends on the nature of the rights, timing and method of any transfers, probate considerations, and your long‑term goals. Coordination between estate planning and IP counsel is key.
Patents
Patents do not carry a termination right and can be transferred by will or to a trust. Using a trust can provide continuity and avoid probate delays and publicity. Your plan should identify the owner, the patent number, who may grant licenses, and who must pay maintenance fees. Record any change of ownership with the USPTO to preserve the chain of title.
Trademarks
Trademarks can also be transferred through a will or trust. A trust may offer administrative advantages, but the right choice depends on your circumstances. Because a trademark generally must be conveyed with the goodwill of the related business or goods/services, ensure your estate plan addresses both. After transfer, the new owner should record the assignment with the USPTO, maintain the chain of title, continue using the mark in commerce, police unauthorized uses when appropriate, and keep up with maintenance and renewal filings to preserve rights.
Royalties
Licenses and assignments often generate royalties or other income. Your plan can direct those payments to beneficiaries or to a trust, and your fiduciary should notify publishers, agencies, or platforms to redirect payments accordingly. Consider naming an executor or trustee with experience managing IP and royalty streams.
How we can help
Estate planning for intellectual property is nuanced. Our Madison, Wisconsin Estate Planning attorneys can help you document and protect the products of your creativity so the associated rights and income pass to the people you choose, in the way you intend.