Who Will Inherit Your Intellectual Property?

The songwriter who wrote some of the most recognizable hooks in popular music sits down to plan his estate, and he does what every careful person does. He inventories the house, the brokerage account, the cars, the watch collection. He names guardians for the kids. He signs a will. And then-because almost everyone does this-he forgets the single most valuable thing he owns: a catalog of copyrights that will keep paying royalties every quarter for the next seventy years after he is gone. The watch he so carefully bequeathed is worth a few thousand dollars and will not earn another cent. The catalog he forgot is worth millions and will outlive his grandchildren.

That is the strange and wonderful problem with intellectual property. You cannot put it in a safe-deposit box. You cannot hang it on a wall or hand it to a grandchild across the kitchen table. A copyright, a patent, a trademark, a trade secret, a royalty contract, the right to control your own name and face-these are legal rights, invisible and intangible, and they do not behave like a house or a savings account when you die. They survive you on their own statutory timetables. They generate income for years or decades. Some can be willed to whomever you choose. And one of them-the copyright termination right-cannot be willed away at all, no matter how carefully your lawyer drafts the documents, because Congress decided that certain heirs get it whether you like it or not.

If you have ever written a book, recorded a song, filed a patent, built a brand, coded a piece of software that still sells, taken photographs people license, or accumulated any of the dozens of smaller creative assets that modern life produces almost by accident, this article is for you. It walks through how each major type of intellectual property is inherited, where the law is unusually generous and where it is unusually unforgiving, the planning tools that actually work, and the practical traps that have cost families fortunes. We will use plenty of concrete examples (with clearly invented companies and characters), explain every term of art in plain English the first time it appears, and flag the places where the law is genuinely unsettled or varies from state to state-which, when it comes to IP and death, is most places.

Start with the central insight, because everything follows from it: intellectual property is property. It can be owned, sold, licensed, gifted, taxed, fought over, and-yes-inherited. The trouble is that each kind of IP keeps its own private rulebook for what happens at death, and those rulebooks rarely match the intuitions people bring from the world of houses and bank accounts. For the bigger picture on how these rights are protected during life, our overview of the consequences of IP infringement and the protection of trade secrets provide useful background. Here, our subject is what happens to all of it after the lights go out.

Why IP Belongs in Your Estate Plan (and Why It So Often Gets Left Out)

Tangible assets announce themselves. A house has a deed. A car has a title. A bank account mails a statement. When you die, a probate court (the court that supervises the transfer of a deceased person's property) and your executor (the person you name to settle your affairs, sometimes called a personal representative) can find these things, value them, and pass them along.

Intellectual property hides. There is no statement that lands in the mailbox each month reminding the family that Grandma's photographs are still being licensed by a stock-image agency, that the patent on Dad's clever bracket is still earning a royalty from a manufacturer in Ohio, or that the trademark on the family barbecue-sauce brand is worth more than the recipe itself. When IP is not specifically addressed in an estate plan, it does not vanish-but it drops into what lawyers call the residuary estate, the catch-all bucket of "everything I didn't otherwise mention." From there it goes to whoever inherits the leftovers, who may be the wrong person, who may not know the asset exists, and who almost certainly does not know how to manage it.

The consequences of neglect are concrete and, for IP, uniquely fatal. Copyrights and trademarks require active stewardship-renewals, registrations, licensing, and policing against infringers-or they wither. A trademark that nobody uses is abandoned. A copyright royalty that nobody collects evaporates into the accounts of whoever was paying it. A patent that nobody pays maintenance fees on lapses into the public domain, free for anyone to use. A trade secret that the heirs accidentally publish loses its protection forever the moment it stops being secret. Unlike a house, which sits there appreciating whether anyone tends it or not, most IP decays-or dies outright-without management. The asset is alive, and like anything alive, it can be neglected to death.

There is also the human dimension. IP is frequently the most personal property a creator owns. The novelist who spent a career building a body of work, the inventor who poured a decade into a device, the entrepreneur who turned a name into a beloved brand-these people usually have strong feelings about who should carry the legacy forward, and even stronger feelings about who should not. An estate plan is the only reliable way to make those wishes binding. Leave it to the default rules and the residuary clause, and you surrender that control entirely.

So the first task is not legal; it is clerical. Make an inventory. Walk through every category below and ask: do I own anything here? You will almost certainly answer yes more often than you expect-the experienced trusts-and-estates practitioner treats an "IP and digital-asset audit" as a standard line item on the opening agenda for any creative or technology client, precisely because clients reliably underestimate what they own. Then take that list to a qualified estate-planning attorney. (If you are unsure which kind of lawyer that is, our guide to types of lawyers and legal specialties explains where IP and estate practice intersect-and why this is one of the few estate matters that often needs two specialists in the room.) With the inventory in hand, we can look at how each asset travels to the next generation.

Copyrights: The Long Tail of Creative Work

Copyright is the law's protection for original works of authorship fixed in a tangible medium of expression-a mouthful that simply means creative work you can perceive: books, articles, poems, screenplays, songs and the lyrics in them, sound recordings, paintings, photographs, sculptures, software code, architectural designs, choreography, and more. The governing statute is the Copyright Act of 1976, codified at 17 U.S.C. § 101 and following. Copyright springs into existence automatically the instant the work is fixed-the moment you save the file, snap the shutter, or set pen to paper-with no application required (17 U.S.C. § 102(a)). Registration with the U.S. Copyright Office is optional but enormously valuable, and we will return to why. For the registration mechanics, see our comprehensive guide to copyright registration and the copyright FAQs.

How Long Copyright Lasts-and Why That Matters for Heirs

The defining feature of copyright, from an estate-planning standpoint, is its astonishing duration. For a work created by an individual on or after January 1, 1978, copyright lasts for the life of the author plus seventy years (17 U.S.C. § 302(a)). For works made for hire-works created by employees within the scope of employment, or certain specially commissioned works-and for anonymous and pseudonymous works, the term is ninety-five years from publication or one hundred twenty years from creation, whichever expires first (17 U.S.C. § 302(c)).

Sit with the "life plus seventy" figure for a moment. If a thirty-year-old photographer takes an iconic image today and lives to ninety, the copyright in that single photograph will not expire until roughly 130 years from now. That is generations of potential licensing income, and several owners' worth of stewardship. A copyright is not a wasting asset that disappears at death; it is a long-tailed income stream your heirs will hold and manage for the better part of a century. Older works follow different and more complicated timetables-the term has been extended more than once-and the question of whether a particular older work is still protected or has fallen into the public domain is its own art. Our article on renewal of copyright walks through that analysis in detail, including the renewal traps that can strip protection from pre-1978 works whose authors (or heirs) missed a step.

Because the term is measured from the author's death, the death itself is the starting gun for the seventy-year clock, not the finish line for the asset. Your estate plan is therefore not winding down a copyright; it is handing off a long-term, income-producing property right that someone will need to actively steward for decades. That single fact-management for a human lifetime after your own-is why copyrights so often belong in a trust rather than a bare will, as we explain below.

Copyrights Are Freely Transferable-During Life and at Death

A copyright is divisible and transferable. The owner can sell it, license it, give it away, or leave it by will. Critically-and this trips up many creators-selling the physical object does not transfer the copyright. If a painter sells a canvas, the buyer owns the canvas; the painter still owns the copyright and the exclusive rights to reproduce, display, and make derivatives of the image, unless those rights are transferred separately and in writing (17 U.S.C. § 202). Any transfer of copyright ownership must be in a signed writing to be valid (17 U.S.C. § 204(a)). The same is true of a manuscript, a master recording, or a photographic print. This is wonderful news for an estate: a creator may own valuable copyrights even in works whose physical embodiments were sold long ago, sometimes for a pittance, decades before the work became valuable.

At death, copyrights pass like other personal property-by will to a named beneficiary, by trust if the copyright has been placed in one, or by the intestacy statutes (the default rules that distribute property when there is no will) if nothing else governs. You can leave your copyrights to a person, to several people in shares, to a charity, or to a trust set up to manage them. You can split them: give the literary copyrights to one child and the musical copyrights to another, or grant a spouse the income for life with the works passing to the children afterward. Copyright's divisibility-the law treats each of the exclusive rights as separately ownable property-makes it one of the more flexible assets in the estate-planning toolkit. It is also a trap for the careless drafter: a will that leaves "my novels" to a daughter has said nothing about the film rights, the foreign-language rights, or the audiobook rights, and a fight over the gaps is a fight nobody wins but the lawyers.

The Catch That Overrides Your Will: Termination of Transfers

Here is where copyright does something no other asset does, and where careful planning collides with an immovable feature of federal law. Congress, worried that authors (and especially their families) often sign away valuable copyrights early and cheaply-before anyone knows whether a work will be a flop or a phenomenon-built into the Copyright Act a right to terminate those transfers and licenses later and recapture the copyright. And it made that right, in significant part, inalienable: it cannot be sold in advance, cannot be contracted away, and-this is the estate-planning bombshell-cannot be left by will. It belongs to a statutorily defined set of heirs, in statutorily defined shares, no matter what your will says. The statute is explicit that termination of a grant may be effected "notwithstanding any agreement to the contrary" (17 U.S.C. §§ 203(a)(5), 304(c)(5))-a phrase the Supreme Court has read to mean exactly what it says, voiding even sophisticated attempts to waive or assign the right ahead of time.

Two provisions create this right. Section 203 (17 U.S.C. § 203) governs transfers and licenses the author executed on or after January 1, 1978. It lets the author-or, after the author's death, the author's statutory successors-terminate the grant during a five-year window that opens thirty-five years after the grant was made (or thirty-five years after publication, for a grant covering publication rights, if that comes sooner). Section 304(c) and (d) (17 U.S.C. § 304(c), (d)) govern transfers made before January 1, 1978, of works that were already under copyright then; they provide their own termination windows tied to the older fifty-six-year term and to the later twenty-year extension Congress added in 1998. As Thomson Reuters Practical Law summarizes the framework, the analysis determines "whether authors or their statutory successors have a statutory right of termination of an earlier transfer or license of a US copyright under Sections 203 or 304(c) and (d) of the Copyright Act of 1976," "the earliest date on which authors or their statutory successors may terminate," and "the individuals who may effect termination."

The mechanics matter enormously for families, so let us be concrete about who holds the right when the author has died. Under § 203(a)(2), the termination interest is divided like this:

The author's surviving spouse owns the entire termination interest if there are no surviving children or grandchildren.
If there are surviving children or grandchildren, the spouse owns one-half and the children and grandchildren own the other half, divided per stirpes-meaning by family branch, with a deceased child's share passing to that child's own children.
If there is no surviving spouse, the children and grandchildren own the whole interest, again per stirpes.
And-importantly-to actually exercise termination, the statute requires that it be effected by those owning more than one-half of the termination interest, and that advance written notice be served on the grantee within carefully defined time limits and recorded with the Copyright Office (§ 203(a)(3), (a)(4)).

Notice what is missing from that list: your will. You cannot give the termination right to a friend, a charity, a business partner, or even to a favored child at the expense of the statutory heirs. If the named statutory successors exist, they hold it, in the shares Congress fixed. This is the lesson at the heart of the celebrated battles over classic comic-book characters and mid-century song catalogs. The heirs of the creators of one of the most famous superheroes spent years litigating their right to recapture copyrights their forebear had assigned to a publisher in the 1930s-fights that turned on the precise scope and timing of §§ 304 and 203 and on whether the original work was a "work made for hire" (which would defeat termination entirely, because the human creator was never the statutory "author" in the first place). Our companion piece on intellectual property disputes concerning superheroes tells those stories in colorful detail; the estate-planning takeaway is sober: termination rights can resurface decades after a deal, in the hands of heirs the original author may never have met-and in shares the author would not necessarily have chosen.

What does this mean for your plan? Several things. First, do not assume a transfer you made years ago is permanent-your statutory heirs may have a recapture right that is itself a valuable, dormant asset, and it should be flagged in your IP inventory even though you cannot redirect it. Second, recognize that the termination right will pass to your statutory heirs by operation of law, so coordinate the rest of your plan around that reality rather than fighting it; a trust cannot capture it, and a will cannot reroute it. Third, get specialized advice on timing, because the notice windows are strict and unforgiving, and a missed deadline forfeits the recapture for good. The Practical Law materials are candid that the standard flowcharts deliberately do "not provide a discussion of the notice requirements for exercising termination rights or the effects of statutory termination," because those requirements are intricate enough to demand their own dedicated analysis. Treat termination as a specialist's problem, because it is one of the most technical corners of an already technical statute.

Work Made for Hire: The Copyright You Created but Never Owned

Before you put a work on your inventory, confirm you actually own it. Under the work-made-for-hire doctrine (17 U.S.C. § 201(b)), if you created a work as an employee within the scope of your job, your employer is considered the author and owner from the start-you never owned the copyright at all, and there is nothing to bequeath. The same can be true of certain commissioned works that fall within the statute's nine enumerated categories and are covered by a signed work-for-hire agreement (17 U.S.C. § 101, definition of "work made for hire"). A graphic designer's logos made for the agency, a staff journalist's articles, a studio programmer's code-these typically belong to the employer. Likewise, anything you assigned away in a signed writing is gone (subject only to the termination right discussed above, which itself does not apply to works made for hire). The estate-planning lesson is to separate the works you truly own from the works you merely made, because only the former are yours to give-and a confident bequest of a copyright you never owned is an embarrassment your executor will discover at the worst possible time.

Patents: Powerful, Valuable, and Mercifully Finite

A patent is a federal grant that gives an inventor the right to exclude others from making, using, selling, or importing an invention for a limited time, in exchange for publicly disclosing how the invention works. Patents come from the U.S. Patent and Trademark Office (USPTO), and unlike copyright they must be applied for; nothing is automatic. There are three kinds: utility patents (the workhorse, covering functional inventions-machines, processes, compositions of matter), which last twenty years from the earliest non-provisional filing date; design patents (covering the ornamental appearance of an article), which last fifteen years from issuance for applications filed on or after May 13, 2015; and plant patents for new varieties of asexually reproduced plants. Our primers on patent basics in plain English, utility patent basics, and general information concerning patents cover the fundamentals; here we focus on inheritance.

Patents are personal property and are freely assignable. The governing statute is blunt: "patents shall have the attributes of personal property," and "applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing" (35 U.S.C. § 261). That section also creates a recording system at the USPTO: an unrecorded assignment is void against a later good-faith purchaser who pays value and records first, unless the earlier assignment is recorded within three months of its date or before the later purchase. The practical translation for heirs is that a patent passes at death like other personal property-by will, by trust, or by intestacy-but the transfer should be documented and, where the patent is being assigned out of the estate, recorded promptly. So far, so simple. But patents carry three features that shape estate planning in distinctive ways.

First, patents expire on a fixed schedule unrelated to the inventor's life. A utility patent's twenty-year clock runs from filing whether the inventor lives or dies. This is the opposite of copyright's "life plus seventy." It means a patent may have only a few years of life left when the inventor dies-or may already have expired-and the value of the asset shrinks predictably as the term runs down. Heirs must understand that a patent is a melting ice cube; the time to monetize it is now, not someday. A copyright can wait a generation for the right deal; a patent cannot.

Second, utility patents require periodic maintenance fees to stay in force-due at roughly 3.5, 7.5, and 11.5 years after issuance (37 C.F.R. § 1.20(e)-(g)). Miss a payment and the patent lapses; reviving it ranges from expensive (within a short grace period, with a surcharge) to effectively impossible (after the window closes, absent a showing the delay was unintentional). An executor who does not know a patent exists will not pay these fees, and a valuable exclusivity right can quietly die for want of a few thousand dollars. Your inventory and your written instructions to your executor should flag every patent, its maintenance-fee schedule, and the person responsible for keeping it alive.

Third, patents are often entangled with license agreements that themselves throw off royalty income. If you have licensed your invention to a manufacturer-see our discussion of how to license a patent from valuation to term sheet-the license contract, not just the patent, is an estate asset, and its terms (assignability, change-of-control provisions, audit rights, the royalty rate, the field-of-use limits, and the duration) determine what your heirs can do with it. We will return to royalty streams as a category of their own below.

One subtlety worth flagging: the right to file a patent application on an invention the decedent conceived but never patented may also survive as an estate asset, and the patent laws expressly contemplate inheritance by providing that the legal representative of a deceased inventor may make the application (35 U.S.C. § 117). But pursuing it requires fast action and specialized counsel, because patent rights can be lost through delay, prior public disclosure, or the one-year on-sale and public-use bars (35 U.S.C. § 102). If an inventor dies mid-prosecution-with an application pending-the estate's representative can usually continue the application, but should consult a patent attorney immediately, because the deadlines in patent prosecution do not pause for grief.

Trademarks: Inseparable from the Business They Identify

A trademark is a word, name, symbol, logo, slogan, sound, color, or other device that identifies the source of goods or services and distinguishes them from competitors'. Trademark rights arise from use in commerce, can be strengthened by federal registration at the USPTO under the Lanham Act (15 U.S.C. § 1051 and following), and-uniquely among the major IP types-can last forever, so long as the mark remains in use and the owner files the required maintenance documents on time. For the lifecycle, see our overview of the trademark process and trademark basics.

Trademarks behave differently from copyrights and patents at death because of a doctrine that surprises almost everyone: a trademark cannot be sold, given, or inherited apart from the goodwill of the business it identifies. The Lanham Act says so directly-a registered mark or an application "shall be assignable with the goodwill of the business in which the mark is used" (15 U.S.C. § 1060(a)(1)). A transfer of a mark without the associated goodwill is called an assignment "in gross," and it is generally invalid-it can actually destroy the very rights it was meant to convey, handing the assignee a brand that no longer means anything in law. The reason is conceptual: a trademark is not an abstract piece of property like a copyright; it is a promise to consumers about who stands behind a product. Wrench the mark away from the business and that promise becomes a lie, so the law refuses to recognize the transfer-and treats the new "owner" as having acquired nothing but a string of letters.

The practical consequence for estate planning is that you cannot meaningfully bequeath a brand without bequeathing the business (or business line) behind it. If you own a sole proprietorship-a business with no separate legal existence from you-the trademarks are personally yours, and they pass with the rest of the business as a unit. If the business is a corporation or LLC, the marks almost certainly belong to the entity, and your heirs inherit them only by inheriting (or inheriting an interest in) the company. So the question "who inherits the trademark?" usually collapses into the question "who inherits the business?" That, in turn, points toward business-succession planning: buy-sell agreements among co-owners, transfer-on-death arrangements for company interests, and trusts or holding entities that hold the operating business. Our deep dive on corporate structuring and running multiple businesses explains how holding and operating companies fit together, which is directly relevant here. If you have built a personal brand around your own name, see also trademarking your own name-a protection that, unlike copyright or patent, can outlast you indefinitely if your successors keep the mark in use.

There is one elegant planning move that uses this structure deliberately: place the trademark in a dedicated IP holding company that licenses the mark to the operating business. Done correctly-with a genuine written license, real royalty payments, and meaningful quality-control provisions so the goodwill stays intact-this can centralize and protect the brand, simplify succession (you transfer the holding company, not the messy operating entity), and sometimes deliver tax and liability advantages. Done sloppily-a "naked license" with no quality control-it can be deemed an abandonment of the mark, because a licensor who fails to police quality is no longer the true source the mark promises. So this is not a do-it-yourself project; the structure that protects the brand in life is the same structure that destroys it if you cut corners.

If a registered mark must be transferred (for example, the holding company assigns it as part of a sale of the whole business line), remember that the USPTO maintains an assignment-recordation system, and recording the transfer protects priority against later purchasers. And whoever ends up holding the mark must keep using it and keep filing the maintenance documents-the Section 8 declaration of continued use (15 U.S.C. § 1058) and the Section 9 renewal (15 U.S.C. § 1059)-or the registration cancels. Like a patent's maintenance fees, these deadlines are silent killers for an executor who does not know they exist; a famous mark can be lost to inattention as surely as to infringement.

Trade Secrets: Valuable Only as Long as They Stay Secret

A trade secret is information-a formula, process, method, customer list, algorithm, or technique-that derives independent economic value from not being generally known and that the owner takes reasonable measures to keep secret. The federal Defend Trade Secrets Act (18 U.S.C. § 1836 and following) and the state-law Uniform Trade Secrets Act (adopted in some form by nearly every state) provide the legal framework; the archetypal example is the famously guarded soft-drink formula that has never been patented precisely because patenting would require disclosing it to the world. Our articles on the protection of trade secrets and building a trade secret protection program from scratch cover the substance.

Trade secrets are property and can be owned by an estate, but they pose a problem no other asset does: the asset is the secrecy itself. The moment a trade secret becomes public, it is gone-not merely diminished but destroyed, and unlike a lapsed patent or an abandoned trademark, it cannot be revived at any price. This makes the manner of inheritance as important as the fact of it. If a decedent's trade secrets are scattered in unencrypted files, described in a probate inventory that becomes a public court record, or casually shared with heirs who do not understand their value, the "reasonable measures to maintain secrecy" that the law requires may evaporate-and with them the legal protection. The estate that wins the secret can lose it in the act of accounting for it.

Estate planning for trade secrets therefore emphasizes confidentiality and controlled transfer. Practical steps include keeping the secrets out of any publicly filed probate document (a common technique is to reference them by location-"the encrypted file described in the letter of instruction"-rather than by content, or to hold them inside an entity whose internal records are not public); binding the heirs, executors, and trustees who will handle them to confidentiality through the governing documents and, where appropriate, separate nondisclosure agreements; and maintaining the same security measures-access controls, encryption, "confidential" marking-after death that existed before. Where a trade secret is embedded in an operating business, it usually travels with the business and the business's existing protection program, which is the cleanest result. For a creator deciding whether to protect an innovation as a trade secret or a patent in the first place-a choice with major consequences for heirs-the trade-off is essentially permanence-but-fragility (a trade secret can last forever but dies the instant it leaks) versus a fixed-term monopoly bought with full public disclosure (a patent).

Royalties, Residuals, and Licenses: The Income the IP Throws Off

For many estates, the IP rights themselves are less immediately important than the money they generate. A novelist's royalty agreements with publishers, a musician's mechanical and performance royalties (collected through publishers, performing-rights organizations, and the Mechanical Licensing Collective-see our article on music licensing in the streaming era), an actor's residuals, an inventor's patent-license royalties, a software author's ongoing license fees-these are contractual payment streams that often continue for years after death.

Two distinctions matter here. First, the contract and the underlying IP are separate assets. You can own a copyright and also own a publishing contract that licenses it; an heir might inherit one without fully understanding the other, or inherit the income stream while someone else holds the recapture right under § 203. The estate plan should account for both, and the executor should locate every royalty agreement, notify every payor of the change in ownership, and redirect payments appropriately. Royalty checks have a way of bouncing around to old addresses and stale bank accounts; a payment stream nobody claims is a payment stream lost, and in the streaming era it is often a payment stream the platform happily keeps.

Second, the terms of each contract control whether and how it can be inherited. Many license and royalty agreements address assignment, death, and change of control directly-some pass freely to heirs, some terminate at death, some require the payor's consent to any transfer. Reading these clauses is essential, because they can quietly defeat a bequest the will took for granted. A well-drafted estate plan may also use a trust to collect and distribute royalty income smoothly over time-paying a surviving spouse during life, then the children-rather than dumping a lump-sum copyright on heirs who have no idea how to administer a licensing relationship, audit a publisher, or chase a delinquent payor.

Royalty income also raises tax questions, discussed in detail below, because it is typically ordinary income to whoever receives it, can be "income in respect of a decedent," and interacts in complicated ways with the estate-tax valuation of the underlying right.

The Right of Publicity: Your Name and Face After You're Gone

The right of publicity is the right to control the commercial use of your identity-your name, likeness, voice, signature, and other recognizable aspects of your persona. It is why a company cannot slap a celebrity's face on a cereal box without permission, and why imitating a famous singer's distinctive voice to sell trucks can be actionable. The seminal cases recognized the right as an assignable property interest distinct from privacy-the term itself was coined in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc., 202 F.2d 866 (2d Cir. 1953)-and as a protectable economic value the Supreme Court took seriously in Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977). Our dedicated article on right of publicity basics and the forward-looking piece on digital doubles, deepfakes, and AI avatars explore the doctrine in depth. For estate planning, one question dominates: does the right survive death, and can you leave it to your heirs?

The answer is the most state-dependent in this entire article, because there is no federal right of publicity. It is a creature of state law, and the states disagree about almost everything-including whether the right exists after death at all. As Practical Law's right-of-publicity overview puts it, "most states recognizing the right of publicity recognize the existence of a postmortem right but there are exceptions," and "the laws governing the right of publicity vary significantly from state to state." Whether the right is even framed as property or merely as a personal privacy interest changes the descendibility analysis from the ground up.

Consider a few of the leading regimes:

California recognizes a statutory post-mortem right of publicity lasting seventy years after death, but only for a "deceased personality"-a natural person whose name, voice, signature, photograph, or likeness had commercial value at the time of death or because of death (Cal. Civ. Code § 3344.1). The right is freely transferable and descendible: you can leave it by will or trust. Crucially, if you do not dispose of it, the statute supplies its own succession order to your heirs (Cal. Civ. Code § 3344.1(d))-so silence does not extinguish the right, but it does take the choice of who controls it out of your hands.
New York added a post-mortem right relatively recently, effective May 29, 2021, for "deceased performers" and "deceased personalities," and the statute expressly declares the post-mortem right "freely transferable and descendible" property (N.Y. Civ. Rights Law § 50-f). For the living, New York's right-of-publicity protection generally exists only as part of its statutory privacy regime (N.Y. Civ. Rights Law §§ 50, 51), a limitation the Court of Appeals underscored in Stephano v. News Group Publications, Inc., 64 N.Y.2d 174 (1984)-which is why, for decades, New York had no post-mortem right at all.
Tennessee-home to the estate of a certain King of Rock and Roll-offers an unusually durable right: an initial ten-year post-mortem term that can be extended indefinitely so long as the identity continues to be used commercially, terminating only after any two-year period of non-use following the initial term (Tenn. Code Ann. § 47-25-1101 and following). Tennessee has also been a leader on the AI front, enacting the ELVIS Act in 2024 to extend protection to voice cloning and unauthorized digital replicas.
Indiana provides one of the longest fixed terms-up to one hundred years after death-plus minimum statutory damages and a broad definition of the protected persona (Ind. Code § 32-36-1 and following).
And some states recognize no post-mortem right at all, treating the right of publicity as personal to the living individual and extinguished at death.

Now the planning trap, and it is a serious one: which state's law applies is usually determined by where the person was domiciled at death, not by where the infringement occurs. Courts generally look to the law of the decedent's domicile to decide whether a post-mortem right even exists. The consequences can be brutal. In Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002), the successors to Princess Diana could not maintain a California right-of-publicity claim against a company selling commemorative merchandise, because Diana was domiciled in the United Kingdom at death and the UK recognizes no post-mortem right of publicity-so under California's choice-of-law rules, there was simply no right to inherit and therefore none to enforce. The same logic has bitten celebrity estates that moved late in life from a protective state to one with no post-mortem right, or vice versa; estates have litigated for years over a decedent's "true" domicile precisely because tens of millions of dollars in name-and-likeness value can ride on the answer.

The lesson for anyone whose name or face has commercial value-not just A-list celebrities, but influencers, athletes, authors, founders, and local notables-is twofold. First, domicile is a planning variable. Where you are legally domiciled at death can determine whether your persona is a transferable, income-producing asset for your family or worth nothing the moment you die. This intersects with broader residency and asset-protection planning; see our piece on offshore versus domestic asset protection. Second, if your domicile state allows it, expressly devise the right of publicity in your will or trust. Do not rely on the default succession order if you have specific wishes-name the recipient, and consider housing the right in an entity or trust dedicated to managing and licensing the persona, much as the estates of major deceased celebrities do through "name and likeness" companies that control everything from biopics to merchandise to AI re-creations.

The Estate-Planning Toolbox: Wills, Trusts, Entities, and Designations

Knowing how each asset is inherited is half the battle. The other half is choosing the right legal vehicle to carry it forward. Here are the principal tools and how they apply to IP.

The Will

A will is the foundational document: it names an executor, directs who receives what, and-critically for IP-can include a specific bequest of particular intellectual property ("I leave all copyrights, in every medium and territory, in my musical compositions to my daughter Maria"). Without a specific bequest, IP falls into the residuary clause and goes to the residuary beneficiaries, who may be the wrong people for the job. A will is also where you can grant your executor explicit authority to manage IP-to license it, register it, defend it against infringers, pay maintenance and renewal fees, continue pending applications, and even exercise or decline to exercise rights-which a default executor might lack the clear power, or the awareness, to do.

A will's two weaknesses for IP are that it goes through probate-a public, sometimes slow court process during which crucial deadlines (a patent maintenance fee, a trademark renewal, a copyright termination notice) can be missed-and that it offers no management structure for the decades of stewardship a long-lived copyright may require. A novelist's executor closes the estate in a year; the copyright needs tending for seventy. For those reasons, serious IP holders usually pair a will with a trust.

The Trust

A trust is an arrangement in which a trustee holds and manages property for the benefit of beneficiaries according to your written instructions. For IP, trusts are often the superior vehicle for several reasons. A revocable living trust holds the IP during your life and passes it at death outside probate, avoiding the public, deadline-perilous court process and the gap in management while an estate is being administered. The trust can install a knowledgeable trustee-or a professional fiduciary, or a "directed trust" arrangement in which an IP-savvy advisor directs the licensing decisions while a corporate trustee handles the accounting-to actively manage the rights for as long as they last. It can stagger distributions over time (income to a spouse for life, principal to children later), protect beneficiaries who are minors or inexperienced, and keep the terms of the arrangement private-which matters more for IP than for most assets, since publicity-shy heirs may not want a public probate file announcing the family's royalty income. For copyrights especially, where the asset may need active licensing and policing for seventy years after your death, a trust is frequently the only tool equal to the timeframe. (Bear in mind, though, that the non-waivable copyright termination right discussed above still passes to the statutory heirs by operation of law-a trust cannot capture or redirect it, so the two systems must be made to coexist rather than collide.)

IP Holding Entities

For business-related IP-and increasingly for valuable personal IP like a celebrity persona or a literary catalog-an IP holding company (typically an LLC) can own the rights and license them out, with the entity interests then passing through your will or trust. This structure centralizes management, can simplify succession (you transfer membership interests rather than re-titling dozens of individual registrations across the Copyright Office, the USPTO, and foreign offices), may provide liability and tax advantages, and-for trademarks-can keep the brand intact through licensing back to the operating business (with the quality-control caveat noted earlier). Planning for the technology- and IP-heavy entrepreneur is itself a recognized specialty; the major practitioner treatises maintain stand-alone practice notes on estate planning for technology entrepreneurs and for artists precisely because these assets demand bespoke structures that a general estate plan never contemplates.

Beneficiary Designations and Contractual Transfers

Some IP-adjacent assets pass not by will or trust at all, but by contract or designation. Royalty agreements may have their own succession or assignment provisions; business interests may be governed by a buy-sell agreement; and digital platforms may offer "legacy contact" or "inactive account" tools (more on those below) that operate independently of your estate documents. Coordinating these is essential, because a beneficiary designation or controlling contract term overrides your will. A common and costly error is to draft a beautiful will leaving the family business to one child while a buy-sell agreement quietly directs the company-and its trademarks-somewhere else entirely. The will and the contract each look airtight in isolation; only when read together does the contradiction surface, usually in litigation.

Coordinating With Marital and Family Agreements

For couples, IP also interacts with marital property law and with prenuptial and postnuptial agreements. A founder marrying after building a catalog of copyrights or a portfolio of patents may want to characterize that IP-and its future royalties-as separate property, or to spell out what happens to it on death or divorce. Because IP can appreciate dramatically and unpredictably-a song written in a bedroom can become a wedding standard licensed for decades-it is a frequent and contentious subject of these agreements. Our overview of prenuptial agreement basics explains how creators and business owners use them to protect a company or a future royalty stream. The key discipline is consistency: the prenup, the will, the trust, and any buy-sell agreement should all characterize and route the same IP the same way, so they reinforce one another instead of feeding a will contest.

Valuing Intellectual Property for the Estate

You cannot plan around, divide, or pay tax on an asset you cannot value-and IP is notoriously hard to value. A copyright's worth depends on uncertain future licensing; a patent's value shrinks as its term runs and swings on whether it is being infringed or licensed; a trademark's value is bound up with the goodwill of a living business; a trade secret's value is, almost by definition, hidden. Yet valuation matters for several practical reasons: it drives estate-tax calculations, it determines how to divide assets fairly among heirs, and it informs whether to hold, sell, or license.

Appraisers generally use three approaches, often in combination. The income approach projects the future income the IP will generate (royalties, license fees, residuals) and discounts it to present value-the workhorse method for income-producing copyrights and patent licenses. The market approach looks at what comparable IP has sold or licensed for, which works when there is a genuine market of comparables (catalog sales, for instance, increasingly provide benchmarks). The cost approach asks what it would cost to recreate or replace the asset, which is more useful for some software and trade secrets than for a hit song that could never be re-created at any price. For estate purposes, the standard is fair market value at the date of death (or, by election, an alternate valuation date six months later under 26 U.S.C. § 2032), and the IRS scrutinizes IP valuations-particularly for famous personas and catalogs-because the numbers can be enormous and the methods debatable. The estate of more than one celebrity has fought protracted, headline-making battles with the IRS over the date-of-death value of a name and likeness, with the parties' appraisals differing by orders of magnitude. The practical advice: for any IP that might be material to the estate, engage a qualified IP-valuation specialist early, document the methodology carefully, and expect the value to be contested if it is large.

Taxes: The Quiet Complication

Inheriting IP triggers the ordinary machinery of transfer taxation, with several genuinely IP-specific wrinkles that catch even experienced planners. The federal estate tax applies to the date-of-death value of everything you own, including IP, above the exemption amount (which is large but not unlimited, and which is scheduled to change-this is an area to confirm with current counsel rather than rely on a static figure, since the exemption has swung dramatically with each tax act). Where IP is valuable, its inclusion can push an estate over the threshold and generate real liability, which is why valuation and lifetime planning (gifts, grantor trusts, charitable transfers) matter so much for creators.

The subtler issue-and the one that trips up the most plans-is basis and the character of the income. Here copyright behaves unlike almost any other asset, and the rule is counterintuitive. In the hands of the creator, a copyright (or a musical composition) is not a capital asset; it is excluded from capital-asset treatment by 26 U.S.C. § 1221(a)(3). The same exclusion follows the asset to anyone whose basis is determined by reference to the creator's basis-most importantly, the donee of a lifetime gift. So if a songwriter gives her copyrights to her child during life and the child later sells them, the child pays tax at ordinary income rates rather than the lower long-term capital-gains rates, because the child stepped into the creator's shoes (26 U.S.C. § 1221(a)(3)(C)). Lifetime gifting of a creator's own copyright, in other words, can be a tax own-goal.

Death changes this. Most inherited property receives a "stepped-up" basis to its date-of-death fair market value (26 U.S.C. § 1014), which both resets the basis and-critically for copyrights-can convert the asset into a capital asset in the heir's hands, because the heir's basis is no longer "determined by reference to" the creator's basis. The same copyright that would have produced ordinary income if gifted during life can produce capital-gains treatment if it is instead held until death and inherited. This is one of the rare places where the tax code rewards waiting, and it is a powerful reason to think hard before gifting a creator's copyrights during life.

Two more points round out the picture. Royalty income received after death is generally ordinary income to the recipient, and much of it is "income in respect of a decedent" (IRD) under 26 U.S.C. § 691-income the decedent had earned a right to but had not yet received at death. IRD does not get a basis step-up, it is taxed to the recipient as the decedent would have been taxed, and it can be subject to both estate tax (on the value of the right) and income tax (as it is collected), softened only by a deduction for the estate tax attributable to it. The interaction of estate tax on the value, income tax on the royalties, the special § 1221 character rule, and the § 1014 step-up is genuinely intricate and varies with the type of IP and the facts. This is not a place for guesswork; it is a place for a tax-aware estate planner. The high-level point is simply that IP is taxed both when it passes (estate tax on its value) and as it earns (income tax on the royalties), and that how you pass it-by lifetime gift or at death-can change the tax rate on a later sale by a wide margin.

The Digital-Assets Problem: RUFADAA and the Keys to the Kingdom

A modern estate contains a sprawling layer of digital assets: domain names, websites and blogs, social-media accounts, cloud-stored photos and manuscripts, software repositories, online storefronts (Etsy, eBay, app-store developer accounts), cryptocurrency wallets, and the email accounts that often hold the keys to everything else. Some of these are intellectual property or hold it (a domain name can be a valuable brand asset; a cloud folder may contain unregistered copyrights worth a fortune); others are merely the access points to IP and income. Either way, they are notoriously easy to lose, because they are protected by passwords, governed by service-provider terms, and frequently invisible to an executor who does not even know they exist. As one practitioner note observes, when an individual dies, "critical digital assets may be difficult or impossible for anyone other than the account holder or owner to control."

The legal framework here is the Revised Uniform Fiduciary Access to Digital Assets Act (RUFADAA), a model law from the Uniform Law Commission now enacted in nearly every state. RUFADAA sets a hierarchy for who controls your digital assets after death or incapacity. At the top sits an online tool-a platform's own legacy feature, like Google's Inactive Account Manager or a social network's legacy-contact setting-which, if you use it, overrides your will and other documents. Below that come your estate-planning documents (will, trust, power of attorney); below those, the provider's terms-of-service agreement (TOSA); and only if none of those speak does RUFADAA's default rule apply.

Two features of the act deserve special emphasis. First, RUFADAA draws a sharp line between the catalogue of a person's electronic communications-the identifying metadata, like who sent a message and when-and the content of those communications. A fiduciary can usually reach the catalogue by default, but reaching the content of emails and private messages requires the user's affirmative consent, because the federal Stored Communications Act (18 U.S.C. §§ 2701-2712) otherwise forbids a provider from disclosing content (18 U.S.C. § 2702(a)) and a fiduciary, unlike law enforcement, cannot compel it. The relevant exception lets a provider voluntarily disclose content only with the user's lawful consent-which is exactly the consent your estate documents should grant in plain language. Second, many TOSAs either ignore death entirely or affirmatively prohibit transfer, and some "assets" are not assets at all but mere personal licenses that die with you: a streaming music or e-book library, for instance, is typically licensed "not sold"-Apple's terms state flatly that "apps made available through the App Store are licensed, not sold, to you"-so there may be nothing to inherit even though the account looks full of property.

The practical estate-planning steps for the digital and IP-bearing layer are concrete and worth doing this week:

Inventory your digital assets-domains, accounts, repositories, wallets-and note where each lives. (Do not simply list passwords in your will; a will becomes a public record, and using someone else's credentials may violate the provider's terms or even federal law.)
Use providers' online tools where they exist (legacy contacts, inactive-account managers), remembering they supersede your other documents-set them, and set them consistently with your plan.
Grant explicit authority in your will, trust, and power of attorney for your fiduciaries to access and manage digital assets and, where you want it, the content of electronic communications-RUFADAA and the Stored Communications Act both key off this language, and its absence can leave an executor locked out of the very email account that holds every other password.
Store access information securely-in a password manager, a sealed letter of instruction, or with counsel-so the fiduciary can actually reach the assets without breaching a TOSA or scrambling to reset credentials on a deadline.
Address valuable digital IP specifically-the domain that is your brand, the cloud archive of unpublished manuscripts, the code repository that still earns-so it is preserved, renewed, and passed to someone equipped to manage it.

A lost domain name does not just cost a renewal fee; an unrenewed domain can be snapped up by a stranger and your brand held hostage. An inaccessible cloud archive can orphan a body of copyrighted work no one can even prove exists. An untended developer account can strand an app that was still earning every month. Digital-asset planning is where the abstract law of IP inheritance becomes a very practical scavenger hunt-and the difference between a smooth transfer and a permanent loss is usually just a little advance organization.

Putting It Together: A Worked Example

Meet our invented creator, Vivian Cross (a hypothetical), a moderately successful singer-songwriter and amateur photographer who also co-founded a small specialty-coffee company. When Vivian sits down with an estate planner, the inventory reveals far more IP than she expected:

Copyrights in roughly forty songs she wrote (some assigned to a publisher in deals signed fifteen years ago), the master recordings of two self-released albums, and several thousand photographs, dozens of which a stock agency licenses.
A publishing contract and PRO registrations generating quarterly royalties, plus a stock-photo licensing account.
A pending patent application on a clever cold-brew filter she invented for the coffee company.
Federally registered trademarks for the coffee brand's name and logo, owned by the company's LLC.
A trade secret: the proprietary roast profile that customers swear by.
A right of publicity in her name and image, modest but real-she is domiciled in California.
Digital assets: the coffee company's domain, her artist website, social accounts with a large following, a cloud folder of unreleased recordings, and a small crypto wallet.

Her planner builds a layered plan. A revocable trust holds her copyrights and royalty contracts, with a professional co-trustee experienced in music administration and instructions to license actively and pay the income to Vivian's spouse for life, then to her children. The plan flags-but does not try to capture-the § 203 termination rights in the songs assigned fifteen years ago, noting the windows that will open around year thirty-five and directing the trustee and family to consult specialized counsel well before each notice deadline, since those rights belong to her statutory heirs by law and cannot be routed through the trust. The plan also notes the tax trade-off: because a creator's copyrights are not capital assets in her or a donee's hands under § 1221(a)(3), the planner advises against gifting the copyrights during life and for holding them until death, so the heirs take a stepped-up basis and capital-asset character under § 1014.

The patent application is assigned to the coffee LLC, and the executor is instructed to continue prosecution and calendar the future maintenance fees; the trademarks stay with the LLC, and Vivian's membership interest in the LLC passes under a buy-sell agreement coordinated with-not contradicted by-her will. The trade-secret roast profile is referenced by location, not content, kept out of any public probate filing, and the trustees are bound to confidentiality. Because Vivian is a California domiciliary, the plan expressly devises her right of publicity to the trust under Cal. Civ. Code § 3344.1, so her family-not the statutory default-controls and can license her name and likeness for the seventy-year post-mortem term. Finally, a digital-assets clause in the will, trust, and power of attorney grants her fiduciaries authority over accounts and the content of communications, she activates the platforms' legacy tools, and her access credentials live in a secure password manager referenced (not reproduced) in her documents.

The result is a plan that gets each asset to the right hands, keeps every income stream alive, respects the rights the law reserves to her heirs regardless of her wishes, minimizes avoidable tax, and equips her family to manage a portfolio of intangibles for decades. None of it happened automatically. All of it required someone to notice the IP in the first place.

Key Takeaways

Intellectual property is property and it survives you-copyrights for the life of the author plus seventy years, patents on fixed terms, trademarks potentially forever, trade secrets for as long as secrecy lasts. Most of it generates income long after death, and almost all of it gets overlooked.
Start with an inventory. You almost certainly own more IP than you think. List it, confirm you actually own it (watch for work-made-for-hire and prior assignments), and take the list to qualified counsel.
Copyright's termination right (17 U.S.C. §§ 203, 304) cannot be willed away. It passes to a statutorily defined set of heirs in defined shares, with strict notice deadlines-plan around it, not against it.
Patents are personal property assignable in writing under 35 U.S.C. § 261, but they expire on a fixed clock and die early if maintenance fees go unpaid-treat them as melting ice.
Trademarks travel with the goodwill of the business, so brand succession is really business succession; an IP holding company can centralize and protect the mark if-and only if-it is structured with genuine quality control.
Trade secrets die if exposed, so confidentiality must survive death-keep them out of public probate filings and bind your fiduciaries to secrecy.
The post-mortem right of publicity is intensely state-specific and turns on domicile at death. If your name or face has commercial value, know your state's rule and-if it allows-expressly devise the right.
Mind the tax traps. A creator's copyright is ordinary-income property under § 1221, so gifting it during life can backfire; holding it until death gives heirs a stepped-up basis and capital-asset treatment, while post-death royalties are usually ordinary income and often IRD.
Don't forget digital assets. Use RUFADAA-aware documents that grant access to the content of communications (the Stored Communications Act blocks fiduciaries otherwise), set providers' legacy tools, and store credentials securely without listing passwords in a public will.

Frequently Asked Questions

Does my copyright die when I do? No-and that is precisely the point. For works created on or after January 1, 1978, copyright generally lasts for your life plus seventy years (17 U.S.C. § 302(a)). The copyright becomes an asset of your estate and passes to your heirs, who will own and manage it-and collect any royalties-for the better part of a century. It does not expire at death; it begins a seventy-year afterlife.

Can I leave my copyrights to whomever I want? Mostly yes. You can bequeath copyrights by will or trust to any person, charity, or entity, and you can divide them however you like (literary rights to one child, musical rights to another, film rights to a third). The one major exception is the termination of transfer right under 17 U.S.C. §§ 203 and 304: if you assigned a copyright during life, the right to recapture it later belongs to your statutory heirs (spouse, children, grandchildren) in shares fixed by Congress, and you cannot redirect that particular right by will. Everything else you generally can.

Who inherits a trademark? Whoever inherits the business behind it. A trademark cannot be transferred or inherited apart from the goodwill of the business it identifies (15 U.S.C. § 1060)-an assignment "in gross" is invalid and can destroy the mark. If you run a sole proprietorship, the marks are yours personally and pass with the business; if you operate through a corporation or LLC, the marks belong to the entity, and you pass them on by passing on the company interest. The mark must keep being used and the Section 8 and 9 maintenance documents kept current, or it lapses.

What happens to a patent when the inventor dies? The patent passes like other personal property-by will, trust, or intestacy, in a written assignment under 35 U.S.C. § 261-but it does not get a "life plus seventy" bonus. A utility patent expires twenty years from its filing date regardless of when the inventor dies, and maintenance fees must be paid (around years 3.5, 7.5, and 11.5) or it lapses early. If an application is still pending, the inventor's legal representative can continue it (35 U.S.C. § 117). Treat a patent as a depreciating, deadline-sensitive asset and monetize or maintain it promptly.

Can my family control my name and likeness after I die? It depends entirely on your state, because there is no federal right of publicity. Some states (California, Indiana, Tennessee, New York, and others) recognize a post-mortem right that can be inherited and licensed-California's runs seventy years (Cal. Civ. Code § 3344.1), Indiana's up to one hundred, Tennessee's potentially forever with continued use. Other states recognize no post-mortem right. Which law applies usually depends on where you were domiciled at death (see Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002)), so domicile is a planning variable, and if your state allows it you should expressly devise the right.

Do I need a trust, or is a will enough? A will is the minimum and can include specific IP bequests and grant your executor authority to manage IP. But for valuable, long-lived, income-producing IP-especially copyrights that may need active licensing for decades-a trust is often better: it avoids the delay and public exposure of probate (during which crucial deadlines can be missed), installs knowledgeable management, and lets you stagger income to beneficiaries over time. Many IP owners use both, plus a holding entity for business-related IP.

Should I give my copyrights to my kids now or leave them at death? Usually leave them at death. A creator's own copyright is not a capital asset under 26 U.S.C. § 1221(a)(3), and that ordinary-income character follows the copyright to anyone who takes it as a lifetime gift (§ 1221(a)(3)(C))-so a child who is gifted the copyright and later sells it pays at ordinary rates. If instead the child inherits the copyright at your death, the asset generally gets a stepped-up basis to date-of-death value under § 1014 and becomes a capital asset in the child's hands. Holding until death can therefore meaningfully reduce the tax on a later sale. Run the numbers with a tax-aware planner before gifting.

What about my domain names, social accounts, and cloud files? These "digital assets" are governed by RUFADAA, enacted in nearly every state. Use any legacy tools the platforms offer (they override your other documents), grant your fiduciaries explicit authority over digital assets and the content of communications in your will, trust, and power of attorney (the Stored Communications Act, 18 U.S.C. §§ 2701-2712, otherwise blocks access to content), and store access credentials securely-without simply listing passwords in your will, which becomes a public record. Valuable digital IP (a brand domain, an archive of unpublished work) should be addressed specifically so it is preserved and renewed.

How is intellectual property valued for the estate? Appraisers use the income approach (discounting projected royalties to present value), the market approach (comparable sales and licenses), and the cost approach (replacement cost), often in combination, to estimate fair market value at the date of death (or the alternate valuation date under 26 U.S.C. § 2032). IP valuations-especially for catalogs and celebrity personas-are frequently large and frequently contested by the IRS, so engage a qualified IP-valuation specialist early and document the methodology.

This article is general information, not legal advice. Intellectual property, tax, and estate law vary by state, change over time, and turn on the specific facts of your assets and goals. Consult qualified counsel-an estate-planning attorney working with IP-savvy and tax-savvy advisors-before acting.