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Are intellectual property assets included in your estate plan?

If you are aware that you possess intellectual property, you probably know how to apply for protection of these tangible assets. What you may not know is provisions that need to be made to transfer intellectual property to your successors.

In general, you can transfer intellectual property through estate planning documents, such as a will or trust, or through an agreement during your lifetime. Without these in place, you are leaving the succession of your intangible assets in control of the state. 

Intellectual property succession laws vary widely between copyrights, trademarks and patents. Below is a summary of how each type of intellectual property relates to estate planning issues:

  • Copyrights - A copyright allows you to retain the rights to creative works, such as literary work, visual artwork, songs, films, architectural designs and computer software. This is different than ownership of the tangible creation. For works created in 1978 or after, copyrights typically last the life of the author plus 70 years. For works for hire, they last 95 years from first publication or 120 years from creation, whichever expires sooner. Earlier works are governed by more complex rules. Since copyrights continue past one's lifetime, it is important to plan for future transfers of control.
  • Trademarks - A trademark protects the brand, design or other methods to distinguish your goods from your competition. It does not protect the goods or ideas for the goods. Trademarks typically are registered through the federal government. Trademarks can last forever, as long as re-registration and fee payments are continued. Transfers of the trademark registration must be recorded during estate administration, and the new owner should have an understanding of how to protect the trademark from infringement.
  • Patents - A patent protects inventions, which is defined as any new or useful process, machine, manufacture or composition of matter, or any improvements to those inventions. Depending on the type of patent, registration can last from 15 to 20 years from the issue date. Patents must be transferred in writing, clearly stating who now has the right to its license. This transfer needs to be filed with the U.S. Patent and Trademark Office. Transfers also can be made during the application and review process.

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