Just because intellectual property raises unique and often confusing issues does not mean that intellectual property rights are somehow different from other property rights when it comes to estate planning. Intellectual property rights don't end with the life of the creator, and, just like other property rights, they can be passed on by will, trust or through intestacy. And because intellectual property rights are fast becoming some of the most important assets in any portfolio, a good estate plan—which, by definition, should consider all property rights—should absolutely account for intellectual property rights.
Here are a few things to consider:
Whether through simple oversight or ignorance of the nature of intellectual property, these plans then fail to do what the property owner would have wanted—make provision for all of his or her property to pass to the chosen beneficiaries—had he or she simply known how to accomplish that goal.
In some cases, this might be because of intellectual property's “intangible” nature—if something can't be seen, moved or hidden, many people just don't think of it as devisable.
Maybe the creator thinks that his or her intellectual property rights end at death. This, of course, is not at all the case.
So long as the mark continues to be used and renewed, it has no expiration date. So if you own a trademark—especially one that has proven valuable to your business over the years—don't you want to be able to decide who gets the rights to that trademark when you die? It's not that it won't go anywhere if you don't—all your property goes somewhere, after all—it just might not go to the same person you would choose, and you might lose one of the primary benefits of your property rights.
For many celebrities, the value of their name and creations increase after death due to increased demand and a limited supply. Think of Andy Warhol, Biggie Smalls or any other popular celebrity who has passed away recently, and you'll begin to grasp the enormity of the earnings at issue—these earnings, of course, all go to the beneficiaries of the celebrity's estate. In any such instance, the amounts in question could be in the tens of millions of dollars. That's why the intellectual property rights (as well as rights of publicity) of the dearly departed are often hotly contested.
So: have you authored a book? Written a song? Devised a ground-breaking invention? Built a business whose name and goodwill are now valuable? Do you want to ensure that the rights to your intellectual property go to the people you choose? Then make sure that any estate plan you make takes into consideration these rights—rights as distributable as your house, car or favorite pair of shoes…and probably a lot more valuable.
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