Intellectual Property After Death: A Guide to Intestate Estates in NSW

Introduction

When a person dies without a valid will, their estate passes under intestacy laws. In New South Wales, the next of kin must apply for letters of administration through the Supreme Court of NSW to manage and distribute the deceased’s assets.

Intellectual property and digital assets are easy to overlook in a deceased estate. This guide explains what an administrator must do to identify, protect, and transfer these assets.

Interactive Tool: Check Your Risk With Estate IP & Digital Assets

Categories of IP & Digital Assets in an Intestate Estate

Traditional IP Assets

Traditional intellectual property may form part of an estate even when it has no immediate financial return. It can include:

• registered trade marks;
• patents for new devices, substances, methods or processes; and
• copyright in literary, artistic, musical or dramatic works.

Moral rights also relate to a deceased person’s creative works. Unfinished or unpublished creations may still be assets for an administrator to identify before the estate is dealt with under intestacy arrangements.

Emerging Digital Assets & Cryptocurrencies

Digital assets may include:

• cryptocurrencies;
• non-fungible tokens;
• email accounts;
• social media profiles;
• online content; and
• intellectual property stored online.

These assets may carry financial, sentimental, reputational or commercial value, including value connected with personal branding and commercial goodwill.

Section 46 of the Probate and Administration Act 1898 (NSW) (‘Probate and Administration Act‘) includes legal rights and other less tangible interests within personal estate. 

An administrator should therefore consider digital accounts and online holdings when identifying the assets of the estate, even where the relevant platform grants only a licence to use the account rather than ownership of the underlying service.

Duties of an Administrator for IP Assets

Access Security & Asset Valuation

An administrator must identify and protect all intellectual property and digital assets forming part of the deceased estate, and may benefit from advice from wills and estate lawyers assisting with estate administration. This includes locating:

• passwords;
• login details;
• hardware wallets;
• private keys; and
• other access information needed to retrieve or manage online assets.

Without these details, cryptocurrency and digitally stored intellectual property may remain inaccessible.

Proper valuation is also required where an asset may have financial value. Intangible assets, including intellectual property and cryptocurrency, can be difficult to value because their worth may be uncertain or volatile. 

An administrator should obtain valuations and opinions from suitably qualified advisers before deciding whether an asset should be retained, sold or otherwise dealt with.

Prevention of Lapsing & Non-Use Vulnerabilities

An administrator must monitor deadlines that preserve registered intellectual property rights. These obligations include:

• registered trade marks require renewal every 10 years under Section 72(3) of the Trade Marks Act 1995 (Cth) (‘Trade Marks Act‘); and
• standard patents require annual renewal fees from the fourth anniversary of filing under Section 142 of the Patents Act 1990 (Cth) (‘Patents Act‘).

A renewal may be possible within six months after the renewal date, subject to a late fee, under Section 79 of the Trade Marks Act and Regulation 13.3(1A) of the Patents Regulations 1991 (Cth) (‘Patents Regulations‘). 

Registered trade marks also face removal for non-use in Australia for a continuous period of three years under Section 92(4)(b) of the Trade Marks Act; controlled use through trading activity or licensing may help preserve the mark during estate administration.

Copyright & Moral Rights

Copyright in most literary, artistic, musical and dramatic works usually continues for 70 years after the author’s death. Copyright may also cover:

• sound recordings;
• films;
• broadcasts; and
• published editions.

Ownership of a physical item, such as an original manuscript, does not automatically include the copyright in the work.

An administrator must review the deceased person’s royalty arrangements, copyright licences and related contracts. These agreements do not automatically end when the author dies, and the estate may remain bound by their terms.

Under Part IX of the Copyright Act 1968 (Cth) (‘Copyright Act‘), moral rights include:

• attribution;
• protection against false attribution; and
• integrity of the work.

Moral rights cannot be sold or transferred, but an executor or expressly appointed person may exercise and enforce them on behalf of the deceased author.

Social Media & Online Accounts

Social media profiles, email accounts and other online accounts are frequently controlled by the platform’s terms of service rather than succession law. 

Those terms commonly provide a non-transferable personal licence, meaning an administrator does not automatically obtain a legal right to access or control the account after the account holder’s death.

Platform options may be limited to memorialisation or permanent deletion. Facebook allows a designated Legacy Contact to memorialise an account, while Instagram also permits memorialisation. 

Ongoing management, monetisation or post-death use may not be permitted, which can affect an account’s personal, reputational or commercial value.

Transfer & Assignment of IP Ownership

Fragmentation Risks in Intestacy

Intestacy rules can divide an estate between a spouse, de facto partner, children and other relatives. When intellectual property passes to several beneficiaries, ownership may become fragmented rather than remaining with one person who can manage or commercialise it.

Multiple beneficiaries may disagree about whether to license, sell, enforce or continue using the IP. A beneficiary operating a business may depend on the IP, while other beneficiaries may have different interests or no involvement with the asset. Without agreement, the IP may be underused or become the subject of litigation.

The Process for Trademark & Patent Assignment

An IP assignment begins with a contract agreement between the current owner, known as the assignor, and the proposed new owner, known as the assignee. The agreement should state that ownership is transferred and identify whether the assignment is full or partial. Each party must sign through an authorised person.

After the agreement is completed, the ownership record should be updated with IP Australia:

• A trade mark assignment requires an approved request form and supporting evidence, including the assignment date, party details, trade mark numbers and signatures.
• A patent or patent application transferred to a new owner requires the Request to amend ownership details for an application or patent form.

The transfer occurs through the agreement, while the request records the change on the relevant register.

Conclusion

An intestate estate may include valuable intellectual property, digital accounts, cryptocurrencies and unfinished creative work, all of which require careful identification, protection, valuation and transfer. An administrator seeking a grant of letters of administration through the Supreme Court of NSW must also consider access issues, ownership records, renewal obligations and the risk of disputes between beneficiaries.

For estate administration involving complex IP and digital assets, contact LawBridge’s wills and estate lawyers for complex estate administration. Contact Law Bridge to discuss the estate, obtain specialist legal advice and plan the steps needed to administer and distribute the assets of the deceased with greater clarity.

Frequently Asked Questions