An often forgotten issue during estate planning is that copyrights (as well as patents and trademarks) are personal property. As such, they get passed on to heirs like any other form of personal property. Unfortunately, many inventors, photographers, authors, artists, and musicians do not expressly bequeath these rights, so they generally pass with the residuary estate in the will. By not naming an heir to intellectual property, you are missing an opportunity to delegate to whom that property will transfer when you pass away. There may be a particular person, business or trust that is best suited to manage your post-mortem rights in songs, patents, photographs, books, or other intellectual property.

The residuary estate is a “catch all” in that all the property of the decedent not otherwise bequeathed will become part of the “residue” and ownership will pass to whomever the will designates as the beneficiary of the residuary estate. If an owner dies without a will, title will generally transfer according to the laws of intestacy of the state or country where the decedent was domiciled at the time of death (had permanent residency). A typical will clause for the residuary estate is:

I give all the rest, residue and remainder of my property and estate, both real and personal, of whatever kind and wherever located, that I own or to which I shall be in any manner entitled at the time of my death (collectively referred to as my “residuary estate”), as follows:

a)      If my wife [Jane Doe] survives me, to my wife outright.

b)      If my wife does not survive me, then to my daughter [Janice Doe] if she survives me, or if she does not survive me to any then living issue of my daughter, in equal shares per stirpes.

The following is sample language that you may want to consider using in your will to specifically bequeath your intellectual property:            

I give all of my [copyright/trademark/patent] personal property owned by me at the time of my death to my wife, [Jane Doe], if she survives me, or if she does not survive me, to my daughter, [Janice Doe], if she survives me.    

If you have personal intellectual property rights, I encourage you to give thought to how this legacy should be bequeathed. Your creative contributions will live on long after you have passed. Don’t let these important rights be an afterthought!