Estate PlanningPropertyWillsPatently important: Dealing with Intellectual Property on death

23rd April 2021Siobhan Smith2
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Patently important: Dealing with Intellectual Property on death

In light of the ongoing intellectual property rights dispute between supermarket chains M&S and Aldi regarding an adorable and much-loved pair of caterpillar cakes we have been thinking on the topic of intellectual property and how this relates to wills. Intellectual property can form a large part of a person’s estate especially if they are an author or musician. Whether you’re #FreeCuthbert or #SaveColin, if you have intellectual property of your own you should consider how you want to deal with and protect this after your death.

When writing a will it’s easy to focus on our tangible property, the things we can see and hold. How can we protect the family home? Who do we want to inherit our money? But if you are a creative type you may also possess a wealth of intangible assets too in the form of intellectual property. This consists of works uniquely created such as works of art, music, literature, brands, or software. Attached to intellectual property are a series of rights that the creator may exercise. These rights may be protected for a number of years following death depending on the asset, for example copyrights attached to literary works continue to run for a period of 70 years following the author’s death.

Rights associated with intellectual property could take the form of:

  • Copyrights
  • Patents
  • Trademarks
  • Design rights
  • Artist resale rights

Intellectual property rights may create an income of their own, or income may flow from associated work in the form of royalties.

Whatever the form it takes it is important that your will takes account of them so you can ensure that these important assets and any income associated with them pass to the people you wish to benefit from them or are protected.

After you die any intellectual property forms part of your estate. If you do not have a will this means that any intellectual property will pass to those who are entitled under the intestacy rules. If you have a will but make no specific mention of your intellectual property it will pass to the residuary beneficiary of your estate. By will it is possible to direct your intellectual property to specific people by making a specific gift of it.

It is even possible to go one step further in protecting these assets by directing them to a trust. This will ringfence your intellectual property and allow you to exercise a degree of control over the assets even after you have passed away. A trust would allow the trustees to use the assets to benefit your chosen beneficiaries, but ideally following a letter of wishes you have left them giving instructions on how you would like the trust to be managed.

You should also consider who you would like to deal with your intellectual property rights immediately following your death. A will appoints executors to administer the estate but depending on the nature of your intellectual property you may also be able to appoint separate ‘literary executors’. These should be a person or professional who has specialist knowledge that makes them a good choice for dealing only with your intellectual property. This leaves your ordinary executors to deal with your general estate.

In summary, when writing a will make sure not to focus on only your tangible assets. Consider what you want to do with any intellectual property rights too and how you can use your will to exercise some control over your creative legacy even after you’re gone.

To speak to a member of The Society of Will Writers about making a will, try our Find a Member search, or call us on 01522 687888 and a member of the team will be more than happy to help.

Siobhan Smith

After graduating from the University of Lincoln with a 2:1 in Law in 2014 Siobhan has dedicated herself to will writing as a member of the Society’s technical team. Siobhan is also the main tutor for the College of Will Writing’s 4 day introductory course, taught monthly at the College.

2 comments

  • Donald Reevely

    23rd April 2021 at 5:36 pm

    Useful article, thank you…
    As you can appoint literary executors, if you are solely a musician say could you appoint “music executors” or “intellectual property executors” to act on that part of your estate? Could they get a separate Grant of Probate to deal with that part of your estate?
    Would that allow the rest of the estate to be distributed even if the IP part of the estate takes many years to conclude?

    Reply

    • Siobhan Smith

      27th April 2021 at 11:06 am

      Hi Don, literary executors would be able to deal with a musicians works and associated intellectual property rights too. They can obtain a separate limited grant of probate that would allow them to only deal with those specific assets. You’re right that this can allow them to deal with this part of the estate quicker. Similar can also be done for business assets.

      Reply

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