Core Categories of Intellectual Property in Estate Planning

In estate planning and administration, the term "intellectual property" refers to legally recognized rights in certain intangible creations of the human mind. These rights are governed primarily by federal law.

For estate law purposes, identifying whether a decedent owned intellectual property is a threshold question that determines whether additional legal and administrative considerations apply.

Categories

In most estate planning and administration contexts, intellectual property falls into three principal categories.

Copyrights

Copyrights protect original works of authorship that are fixed in a tangible medium of expression. Common examples encountered in estates include:

• Books and written works
• Music and song lyrics
• Photographs
• Visual art
• Audiovisual works

Copyright protection arises automatically upon creation of the work, although registration affects enforcement and available remedies.

Trademarks

Trademarks protect words, phrases, symbols, or designs used in commerce to identify and distinguish goods or services. In estate contexts, trademarks most often arise in connection with:

• Business names
• Logos
• Slogans
• Brand identifiers associated with commercial activity

Trademark rights are tied to use in commerce and may exist with or without federal registration, though registration confers significant legal advantages.

Patents

Patents protect inventions and technical innovations. Compared to copyrights and trademarks, patents appear less frequently in estate planning but may be present where the decedent was involved in:

• Engineering or technical design
• Product development
• Scientific or industrial innovation

Patent rights exist only by federal grant and are subject to statutory requirements and time limits.

What Is Not Intellectual Property

Not all creative, valuable, or business-related items constitute intellectual property. For estate planning purposes, it is important to distinguish intellectual property rights from:

• The physical ownership of books, artwork, or products
• Confidential information that is not legally protected as intellectual property
• Skills, reputation, or personal goodwill not embodied in legally recognized rights
• Contract rights that may relate to creative or commercial activity but are not themselves intellectual property
• Confidential information that is not legally protected as intellectual property
• Skills, reputation, or personal goodwill not embodied in legally recognized rights

These items may still be important estate assets, but they raise different legal questions than copyrights, trademarks, and patents.

Why Classification Matters in Estates

Correctly identifying whether an asset is intellectual property determines:

• Whether federal law governs the scope and duration of the rights
• Whether special transfer or preservation rules apply
• Whether the asset requires attention beyond standard personal property administration

Misclassification at the outset can result in missed assets, lost rights, or incomplete administration.

Subsequent posts in this series address how intellectual property is treated as estate property, how federal and state law interact, and why these assets are frequently overlooked in practice.