Choose a Trustee-Executor Who Can Protect Your Intellectual Property
This is Part II of our two-blog series discussing Intellectual Property. Click here to read Part I reviewing intellectual property to include in your estate plan; Part II covers the duties of a Trustee or Executor to preserve valuable intellectual property when administering a trust or estate.
Selecting the proper trustee or executor is crucial if you wish to protect intellectual properties that are part of your estate plan. That’s because they must be aware of the specific duties necessary to protect that property in your estate after death. In some instances, you might want to consider choosing one person to administer your estate in general, while designating someone with particular expertise and experience to manage intellectual property rights. In any case, it is essential that your wishes regarding ownership of intellectual property be specific and clearly articulated in your estate plan.
Trademarks
For example, state or federal trademark registrations require the trustee or executor to file documents with appropriate agencies to record the transfer of the trademark to the new owner, as designated in a will or trust. Failure to re-register would leave the trademark vulnerable to use by competitors. Unless a new owner is registered, the trademark is covered only by common law, or may be considered to have been abandoned. This could do irreparable harm to a business the decedent had intended to leave to his or her family. A trustee-executor must also watch for any infringements on your trademark, and take necessary actions to protect it.
Patents
Likewise, if you were to die while in the process of filing a patent, your representative must be aware and able to continue that process on your behalf, or to protect patents already held that you want to be the property of your heirs. S/he would also be required to monitor multiple patent lives and pursue renewals as necessary.
Copyrights
Post-death management of copyrights can be complex, ranging from determining present and future value to renewal or sale of rights. Some authors choose to place those responsibilities in the hands of a “literary executor” familiar with copyright law and literary markets, while another executor handles the remainder of the estate. In California, for example, the executor must know that work written and copyrighted during a marriage is community property. In some cases the expertise of a professional appraiser might also be needed to assess the present value of literary works, and/or the potential for ongoing future sales.
Take great care not only in determining what you want done with intellectual properties, but also who you want to manage them on behalf of your heirs. If my office can be of any assistance, please contact us.