Intellectual Property and your Will

5th June 2020 Wills, Trusts & Estate Planning

In this blog we look briefly at some key considerations for people who own intellectual property rights, or who benefit from the exploitation of such rights.

What is intellectual property?

Intellectual property can be defined as creations of the mind, such as novels, works of art, symbols or images used in marketing, songs or designs. The list of items which can count as intellectual property is varied and it can be difficult to know to ‘pass on’ something which may not be physical but which provides you with a benefit.

Additional considerations for creatives

For those involved in the creative or entertainment industries, such as designers, software developers, writers or musicians, consideration should be given to the role that intellectual property assets may play in income generation. You may either own intellectual property rights that produce an income, or be entitled to royalties from the exploitation of such rights, and have an idea of how you would wish these assets to be dealt with after your death.

For example, if you had written a book, you would likely want the rights to the book (and the resulting income) to go to a specific beneficiary of your choice. This can be done under a well-drafted Will. Copyright in literary works lasts for 70 years from the end of the year in which the author dies (or the last author to die if there was more than one), so these assets could potentially generate income for a long time to come. However, if you fail to make proper plans for the distribution of such assets and make your wishes known then following your death, your personal representatives may make decisions that were not what you would have wanted.

An example of why it’s important is, the musician Prince who failed to take sufficient steps to ensure that his legacy would be protected and developed after his death in the way he would have wished. Prince died without a Will, which has resulted in a number of legal difficulties relating to his intellectual property and related rights.

An option that creatives could consider as an alternative is a trust arrangement. This allows for the ring-fencing of intellectual property rights, with trustees assigned the task of utilising these rights for the benefit of the chosen beneficiaries. The person creating the trust, whether during their lifetime or under their Will, can also leave a letter of wishes for the trustees, outlining how they would wish for the trust to be managed. A trust can therefore provide a mechanism under which the deceased can exercise some control over their creative legacy after their death, whilst allowing family members or other beneficiaries to benefit from the assets in the trust for years to come.

It is also worth considering if there is anything other than the product it’s self which needs to be protected, for example – are their patents, copy write or trademarks associated with the product which also add worth?

Of course, a Will can only dispose of assets that are in the deceased's estate at the time of death. Similarly, an individual cannot put property into a trust that does not belong to them. Neither arrangement can be used to override contractual obligations or to claim rights that belong to someone else. It is therefore important that you assess exactly what rights you own so that you can establish what you are able to pass on to beneficiaries or pass into trust on your death. You can then decide how you would want these assets to be dealt with after your death.

In summary

When preparing a Will, thought should be given to digital assets as well as the tangible and traditional assets which would spring to mind for most of us when thinking of our legacy. If you own intellectual property, additional thought should be given to how you would wish for these assets to be dealt with after your death.

The JMW team have vast experience in creating Wills and Trusts and in ensuring that both tangible and intangible assets are properly dealt with. If you would like to create a Will that will protect your legacy please call 0345 241 5305.

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Grace O'Driscoll is a Trainee Solicitor located in Manchesterin our Trainee Solicitors department

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