Intellectual Property as Intangible Personal Property

For estate planning and administration purposes, intellectual property is treated as a form of personal property. More specifically, it is classified as intangible personal property.

This classification explains why intellectual property is subject to wills, trusts, and intestate succession, even though the rights themselves are created and governed by federal law.

Property Classification in Estate Law

For estate law purposes, property is classified as either real property or personal property.^[1]

Intellectual property falls within the category of personal property. More specifically, it is a form of intangible personal property, meaning it consists of non-physical rights recognized as property by law.

This classification places intellectual property alongside other intangible assets commonly encountered in estates, such as financial accounts and contractual rights, even though the source and scope of intellectual property rights are distinct.

Federal Rights, State-Law Property Treatment

Although intellectual property rights arise under federal statutes, their treatment as property within an estate is determined by state law. State law governs:

• Whether an asset is considered property for estate purposes
• How property is held and administered
• How property passes at death

As a result, intellectual property is administered through the same estate law frameworks as other forms of personal property, subject to any federal constraints on the rights themselves.

Why Classification Matters

Recognizing intellectual property as intangible personal property serves several foundational functions:

• It confirms that intellectual property can be owned by individuals and entities.
• It explains why intellectual property is included in estate inventories.
• It provides the legal basis for applying estate planning instruments to intellectual property.

Without this classification, it would be unclear why intellectual property can pass through an estate at all.

In New York, because intellectual property is personal property, it is disposed of by bequest (including under a residuary disposition), not by devise, which New York defines as a disposition of real property under a will.^[2]

Subsequent posts build on this classification by examining what it means for intellectual property to be transferable and descendible, how ownership may change during life, and how intellectual property passes at death.