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Intellectual Property and Estate Planning

The broad scope of “intellectual property” (IP) laws protects United States Patent and Trademark Office (USPTO) registered ideas in the form of copyrights, patents, and trademarks. With the rapid expansion of technological innovation at the global level, the growth of statutory and legislative rule elements in this area of law has been remarkable. Estate law and its ability to protect the IP rights of inventors, artists, and authors, is now also applied to the rights of heirs and beneficiaries gifted intellectual property by way of inheritance. Estates without a will are subject to probate court proceeding. Intellectual property included in an estate will be divided according to a plan drafted by state legislature where the estate is held.

Transfer by Bequest

If a will has been written before a decedent has died, the transfer of intellectual property rights will be performed at the bequest of the owner in a written estate planning document. Bequests traditionally written to transfer tangible personal and real property, are now drafted with language that allows for the inclusion of intellectual property rights. Depending on the intent of the Decedent, the estate may also be structured to designate intellectual property assets separately in a “residuary estate” to be subsequently divided among its beneficiaries, rather than accorded specific heirs.

Transfer by Intestate Succession

Intellectual property may also be transferred to beneficiaries without the existence of a written will. New York intestate succession laws provide probate rules for transfer of a Decedent’s asserts to the closest distribute – usually the administrator of the estate. Spouses and children are transferred all assets of an estate automatically as surviving relatives. If no spouse or children exist, parents, and then siblings are assigned their intestate portion of an estate’s assets, including intellectual property.

Estate Planning and IP Transfer

Intellectual property is an important consideration when drafting a will. The right to a USPTO license is also a responsibility for maintenance payment of the registered IP asset. During probate, an estate’s fiduciary must file the proper USPTO documents to transfer the registered IP asset to the new owner.

Estate transferred IP assets carry contract rights. For example, termination of a copyright asset during a five (5) year period after thirty-five (35) years from date of execution, 17 U.S.C. §203(a)(3)-(4). Statutory heirs of an estate retain the right of termination by right of inheritance. Testamentary bequests and lifetime transfers are an option for owners of IP assets planning an estate.  Royalties, taxation, and IP registration of modifications may influence the decision.

A licensed attorney at law specializing in IP law can assist to determine if the rights to a patent, copyright, or trademark should be transferred while alive, or are most beneficial bequeathed in a will. For more information about New York probate rules, contact a licensed attorney at law specializing in estate law. Ettinger Law Firm licensed attorneys at law are specialists in estate planning matters and can represent you in a probate case. Contact Ettinger Law Firm for consultation in an estate planning or litigation matter.

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