Personal IP Succession Checklist: Asset Identification, Valuation Basis, Transfer Documentation, Termination Right Preservation, and Ongoing Administration

By Casey Scott McKay · 2025-10-16

This checklist audits the intellectual property position of an estate, a divorce, or a living client planning succession, and it starts with the items lost by inaction within weeks. Patent maintenance fees, trademark declarations, pending applications, domain renewals, and continuity of use all have deadlines that pay no attention to probate, and the assets they protect are frequently the ones nobody knew existed. It then covers identification, ownership verification, the termination windows a will cannot redirect, the publicity rights domicile question, income redirection and licence review, valuation and its tax interaction, divorce characterisation, governance, and planning during life for incapacity as well as death. Gate items mark where work should stop.

IP and Technology > IP and IT in Corporate Transactions | Checklist | Published 16 October 2025 - Updated 6 November 2025 | Casey Scott McKay - marksy.us

Summary. This checklist audits the intellectual property position of an estate, a divorce, or a living client planning succession, and it starts with the items lost by inaction within weeks. Maintenance fees, declarations, pending applications, domain renewals, and continuity of use all have deadlines that pay no attention to probate. It then covers identification, ownership verification, the termination windows a will cannot redirect, the publicity rights domicile question, income redirection and licence review, valuation and its tax interaction, divorce characterisation, governance, and planning during life. Gate items mark where work should stop.

Keywords: IP succession checklist · urgent estate deadlines · asset identification · tax return search · ownership verification · work made for hire · termination window table · publicity rights domicile · trademark continuity · royalty redirection · valuation inputs · income in respect of a decedent · divorce characterisation · governance structure · incapacity planning

How to use this checklist

| Phase | What it produces | Who runs it | Gate | |---|---|---|---| | 1. Urgent | Nothing lost to a deadline | Counsel | Week one, before anything else | | 2. Identification | A list of assets and payors | Counsel and family | Tax returns searched | | 3. Ownership | A verified position per asset | Counsel | Evidence recorded, not assumed | | 4. Termination | A grant table with windows | Counsel | Diarised institutionally | | 5. Publicity | A domicile and a state law answer | Counsel | Answer given plainly to the family | | 6. Income | Redirected payments and read licences | Counsel | Statement from every payor | | 7. Valuation | A supported appraisal | Specialist appraiser | Full file supplied | | 8. Divorce | Characterisation and a division mechanism | Family counsel | Reporting mechanism in the order | | 9. Governance | A decision-maker and a structure | Counsel | Conflicts named | | 10. Living clients | A schedule and an incapacity plan | Counsel | Both raised in one conversation |

The matter. A photographer's estate: forty years of largely unregistered work, a small licensing business run through a company, three patents from a side project, a house full of negatives being cleared by relatives, a surviving spouse, two adult children from an earlier marriage, and a quarterly cheque from an agency nobody can identify.

Phase 1. Do the urgent things in week one

[ ] Docket every pending patent application and establish who is instructing the attorney.
- Why. Office actions carry deadlines that do not pause for probate and an abandoned application is frequently unrecoverable. 35 U.S.C. § 117 permits the legal representative to make the application where the inventor has died, so continuation is possible — but only if somebody acts.
[ ] Check and pay patent maintenance fees, since an unpaid fee lapses the patent and this is the most common way an estate loses a patent asset.
[ ] Check trademark declarations and renewals, since a missed declaration of continued use loses the registration.
[ ] Keep the mark in use.
- Trap. An estate that suspends the business while probate proceeds creates a non-use period supporting abandonment under 15 U.S.C. § 1127, and the intent to resume must be genuine and evidenced.
[ ] Renew the domains, which lapse silently and are re-registered within hours.
[ ] Secure the originals — manuscripts, negatives, masters, source code, design files, and hard drives — before the house is cleared by relatives who do not know what they are looking at.
[ ] Preserve account access before credentials expire, devices are wiped, or a provider closes an inactive account.
[ ] Stop any bank account closure that would bounce incoming royalty payments before they can be redirected.
[ ] Issue a preservation instruction to the family covering papers, devices, and storage.
[ ] [Gate] Nothing else in this checklist begins until every item in Phase 1 is done.

Phase 2. Identify the assets

[ ] Search the last ten years of tax returns. Royalty and licensing schedules name payors the family has never heard of, and this is the single most productive document in the exercise.
[ ] Call the accountant, who knows the income sources and replaces weeks of searching.
[ ] Search bank statements for small recurring credits from unfamiliar names, which are collecting society distributions, foreign societies, and quarterly licensees.
[ ] Search email and cloud storage for contracts, informal permissions, agent correspondence, and unpublished work, using the access route the digital assets legislation provides in the relevant state.
[ ] Search the registers — copyright registrations and recorded transfers under 17 U.S.C. § 205, patents, trademarks, and domains — under every name variant, entity, and plausible misspelling.
[ ] Understand what the registers miss, since most copyright is unregistered under 17 U.S.C. § 408 and most transfers unrecorded, so absence proves nothing.
[ ] Contact agents past and present, collecting societies, guilds, publishers, and licensees, several of whom are holding money nobody has claimed.
[ ] Ask the family what the deceased did, since the asset list follows from the activity list.
[ ] Ask about collaborations, since joint works create co-owners whose cooperation determines practical value.
[ ] Check published bibliographies and discographies, frequently more complete than anything the family holds.
[ ] Inspect storage units, garages, and the family home, where negatives and masters sit in conditions that determine whether they are still assets.
[ ] [Gate] The asset list is not closed until the tax returns and the accountant have been worked through.

Where to look, concretely

The identification phase succeeds or fails on thoroughness, and the productive sources are not the obvious ones. Work through this list in order, because it is ordered by yield.

[ ] Ten years of tax returns. Royalty and licensing schedules name payors nobody in the family has heard of. This is the single most productive document in the whole exercise and it is routinely skipped because it feels like an accounting matter rather than an asset search.
[ ] The accountant. Whoever prepared the returns knows the income sources, and one call replaces weeks of work.
[ ] Bank statements, five years. Small recurring credits from unfamiliar names are collecting society distributions, foreign societies, and quarterly licensees. Note every payor name and search it.
[ ] Email, searched for contract vocabulary. Terms like licence, royalty, permission, grant, and rights surface agreements never filed anywhere.
[ ] Cloud storage and devices, for manuscripts, unpublished work, photographs, and code — frequently in several places and rarely organised.
[ ] Agents past and present, since agencies retain records long after a relationship ends and will supply them to an estate that asks properly.
[ ] Collecting societies and guilds, several of which hold undistributed money for members whose deaths they have not been notified of.
[ ] The registers, under every name variant, entity, and plausible misspelling, since registrations are indexed as filed rather than as intended.
[ ] Storage units, garages, and the family home, where negatives, masters, and manuscripts sit in conditions that determine whether they are still assets.
[ ] Old collaborators and business partners, who know what was made and occasionally hold the only surviving copy.
[ ] Enthusiast bibliographies and discographies, which are frequently more complete than anything the family holds and cost nothing to consult.

Phase 3. Verify ownership per asset

[ ] Separate employment works. A work prepared by an employee within the scope of employment is a work made for hire under 17 U.S.C. § 101 and the employer is the author from the outset. The family of a staff photographer inherits nothing from that period.
[ ] Test commissioned works properly, since the doctrine requires both a signed writing and that the work fall within one of nine enumerated categories — which means a freelance commission may not be a work made for hire and the estate may own more than expected.
[ ] Test every claimed assignment against 17 U.S.C. § 204, which requires a writing signed by the owner. Oral agreements, invoices, and handshakes transfer nothing, and much professional practice proceeds on all three.
[ ] Distinguish company ownership from personal ownership, since where the deceased operated through a company the company owns the rights and the estate owns the company — different assets with different tax, transfer, and control consequences that the family will conflate.
[ ] Exclude assigned employee inventions, which are not estate assets, and identify what was not assigned: inventions made outside employment, before it, or after leaving.
[ ] Record joint interests as relationships. Copyright co-owners may each license non-exclusively subject to accounting; patent co-owners may each practise and license without accounting at all under 35 U.S.C. § 262. A half interest is worth what the other half-owner allows.
[ ] Check ownership under 17 U.S.C. § 201 for each category, including works where authorship and initial ownership diverge.
[ ] Record the conclusion and the evidence per asset, since every subsequent phase relies on it.
[ ] [Gate] No asset is valued, licensed, or distributed before its ownership position is recorded with evidence.

Phase 4. Build the termination table

[ ] Create one row per grant the deceased ever made: counterparty, date of execution, works covered, whether the grant covered publication rights, and whether a work made for hire argument is available to the grantee.
[ ] Compute the window per row. 17 U.S.C. § 203 gives a five-year window beginning thirty-five years from execution, or from publication where the grant covered publication rights and that date is earlier. Pre-1978 grants follow the different schedule in 17 U.S.C. § 304.
[ ] Compute the notice window inside it. Service not less than two nor more than ten years before the stated effective date, recorded before that date.
- Trap. A window opening in twelve years requires attention in two, and a date error produces a notice served outside the window, which does nothing.
[ ] Establish the interest holders and their shares — surviving spouse, children and grandchildren per stirpes, or the executor or trustee where no spouse or descendant survives — and note that more than half the interest must agree, computed by statute rather than by headcount.
[ ] Tell the beneficiaries what the will cannot do.
- Why. The right vests in a statutory class regardless of the will, so a will leaving everything to a partner or a foundation does not give them the termination right where a spouse and children exist. This is the conversation that produces litigation if it happens late.
[ ] Assess each grant's value if terminated, since termination is worth pursuing only where the reverted right exceeds the value of the relationship with the grantee.
[ ] Anticipate the derivative works carve-out, which permits continued utilisation of derivative works prepared under authority of the grant before termination.
[ ] Record the table somewhere institutional, since windows outlast the people who computed them.
[ ] [Gate] The table exists and is diarised before the estate is closed.

The termination table, worked through

Because this is the phase that most distinguishes competent administration, work through the mechanics rather than stating the rule.

[ ] List every counterparty the deceased ever granted rights to, including publishers, record companies, agents, studios, employers, and one-off licensees. Grants made informally still count if they were in writing and signed.
[ ] Find the execution date for each, since the window runs from execution — except where the grant covered publication rights, in which case it runs from publication or execution, whichever is earlier.
[ ] Compute thirty-five years forward and add a five-year window for post-1977 grants under 17 U.S.C. § 203, and apply the separate schedule in 17 U.S.C. § 304 for older grants.
[ ] Subtract the notice period, which must be served not less than two nor more than ten years before the stated effective date and recorded before that date takes effect.
[ ] Mark the earliest action date per row, which is ten years before the window opens and is the date that actually needs diarising.
[ ] Compute the interest shares. The surviving spouse takes an interest; children and the children of deceased children take an interest divided per stirpes; and more than half the interest must agree, computed by statute rather than by headcount. An evenly split family is deadlocked and should be told so.
[ ] Flag the grants where a work made for hire defence is available, since a grantee facing termination will argue it and the argument is decided on facts about a forty-year-old relationship.
[ ] Flag the grants with substantial derivative works, since those prepared under authority of the grant before termination may continue to be utilised afterwards, which preserves significant value for the grantee.
[ ] Rank by value, since termination is worth pursuing only where the reverted right exceeds the value of the relationship with the grantee.
[ ] Lodge the table institutionally, with a professional trustee, a firm's diary system, or an entity that will exist in twenty years — because the windows will outlast everyone currently involved.

Phase 5. Answer the publicity rights question

[ ] Establish domicile at death, which usually determines which state's law applies and therefore whether the asset exists.
[ ] Check whether that state recognises a post-mortem right, since some do by statute with terms from a decade to a century, some recognise none, and some have no statute and unsettled common law.
[ ] Check for conditions, including requirements that the person exploited the right during life or that a registration be filed with a state office within a period after death.
[ ] Register promptly where registration is available and has not been made.
[ ] Inventory outstanding licences and current uses in the market.
[ ] Note the federal position, where there is no general publicity right and 15 U.S.C. § 1125 supports false endorsement claims on a confusion theory rather than conferring a property right.
[ ] Expect First Amendment limits in expressive uses, where competing tests apply and outcomes vary by circuit and state.
[ ] Tell the beneficiaries the answer plainly, since a family expecting to license a famous relative's likeness and holding nothing needs to know before instructing anyone.
[ ] [Gate] No licensing programme is contemplated before the domicile answer is confirmed.

Phase 6. Redirect income and read the licences

[ ] Notify every payor with the documentation each requires, since payments otherwise continue to a closed account.
[ ] Obtain a statement from each, because the statements collectively describe an income picture no single source holds — particularly in music, where one work generates income through performance, mechanical, synchronisation, and neighbouring rights channels administered separately, with composition and recording owned by different parties.
[ ] Check guild beneficiary designations for film, television, and music, which sit alongside the will and override the residuary estate for those payments.
[ ] Read every licence for what it requires of the licensor: approvals, deliverables, and quality control obligations somebody must now perform.
[ ] Check termination and change-of-control provisions, since some licences end on death and some continue in ways beneficiaries will not expect.
[ ] Read reversion clauses in publishing agreements, particularly language tying reversion to the work being in print, drafted before print-on-demand made everything permanently available.
[ ] Exercise audit rights where the numbers look wrong, since licensees who stopped paying accurately when nobody was watching are a recurring finding.
[ ] Handle foreign withholding, since overseas collecting societies withhold and recovery requires documentation the estate must assemble.
[ ] Impose quality control on any licence the estate grants, since an uncontrolled licence is a naked licence supporting cancellation under 15 U.S.C. § 1064.
[ ] [Gate] No distribution is made before every payor has been identified and redirected.

The trademark continuity problem

Where the deceased's business carried a mark, the estate has a short window to prevent the asset destroying itself, and the window closes quietly.

[ ] Understand what threatens it. A trademark exists through use, cannot be assigned separately from the goodwill of the business under the requirement in 15 U.S.C. § 1060, and is abandoned by non-use with no intent to resume under 15 U.S.C. § 1127.
[ ] Keep trading, even at reduced scale, and document the intent to resume where operations must pause.
[ ] Identify the personal brand problem early. Where the goodwill is the person — a designer, chef, performer, or professional — bequeathing the mark to an heir who cannot supply what the mark signified transfers a name without the thing it stood for. Tell the family before they build a plan around it.
[ ] Monitor for third-party filings, since a mark that has gone quiet attracts applications from people who noticed, and an estate not watching discovers the filing after publication rather than before.
[ ] Diarise every declaration and renewal, which fall due on a schedule that pays no attention to probate.
[ ] Check the licences the deceased granted for quality control obligations the estate must now perform, since non-performance during administration is what converts a controlled licence into a naked one.
[ ] Consider whether the mark should be allowed to lapse deliberately. Where the business cannot continue and no sale is available, maintaining a registration for a mark nobody will use spends estate money on an asset that will be cancelled anyway, and recording that as a decision is better than treating it as an oversight.

Phase 7. Value the assets and model the tax

[ ] Instruct a specialist appraiser, since a generalist's discounted cash flow on a royalty stream will be dismantled by anyone who knows the sector.
[ ] Supply the full file: the licence table, the statements, the ownership conclusions, and the termination windows. An appraisal built on partial facts is one the other side will take apart.
[ ] Argue the projection period deliberately, since a life-plus-seventy term has decades of theoretical income and a far shorter practical earning life, and the cut-off needs justification beyond convention.
[ ] Model decay from the specific catalogue's history rather than a sector average, and where the history is short, expect the choice of comparator to be the argument.
[ ] Give weight to a market approach alongside the income approach, since the possibility of a revival — a placement, a reissue, a biopic — has real value that a discounted cash flow systematically excludes.
[ ] Support every discount: fractional interests, co-ownership with uncooperative parties, limited marketability, and contingent termination rights each need an appraiser who can explain them rather than assert them.
[ ] Fix the date-of-death value, since assets nobody identified were not valued and a stream surfacing two years later produces an amended return and an argument about a past date.
[ ] Model income in respect of a decedent.
- Trap. Royalties earned before death and received after are taxed to the recipient without the step-up other inherited assets receive, which materially changes the after-tax value and is regularly missed by advisers accustomed to appreciated securities.
[ ] Check basis treatment per asset, since it affects a subsequent sale and any amortisation available to a beneficiary who exploits the asset.
[ ] Check the charitable donation rules before any gift of a catalogue, since the deduction for a contribution of a patent or copyright is limited to the lesser of basis or fair market value, with additional deductions based on the donee's later income.
[ ] [Gate] No estate tax return is filed before the identification phase is genuinely complete.

Phase 8. Handle the divorce variations

[ ] Characterise the asset first, since whether intellectual property created during a marriage is marital or separate depends on state law and community property states generally treat property acquired during marriage as community regardless of whose effort produced it.
[ ] Expect federal and state friction, since courts have divided on whether a copyright in a work created during a marriage is community property, which affects both ownership and the ability to license without the other spouse's consent.
[ ] Divide the income stream rather than the underlying right wherever possible, since co-ownership between former spouses is practically unworkable.
[ ] Build the accounting mechanism into the order: who reports, how often, with what backup, and what audit right the receiving spouse has. An order awarding a percentage with no reporting mechanism produces litigation every few years.
[ ] Address ongoing creation expressly, since an author continuing a series begun during the marriage produces new works whose relationship to the marital estate is contested.
[ ] Characterise goodwill carefully, since states differ on whether personal goodwill is divisible and several treat only enterprise goodwill as marital.
[ ] Note that the termination right cannot be reallocated by settlement, since it vests statutorily in a class that may include the children of the marriage.
[ ] [Gate] No settlement awards a royalty percentage without a reporting and audit mechanism.

Phase 9. Establish governance and decide about exploitation

[ ] Name the decision-maker, since beneficiaries disagree about exploitation and without a mechanism the deadlock persists for decades.
[ ] Consolidate into an entity where the portfolio justifies it, which survives the individuals, simplifies administration, and permits governance — while not affecting the termination right, which vests statutorily regardless.
[ ] Appoint someone competent: a literary executor, special fiduciary, or professional trustee for the intellectual property specifically, since a general executor without the expertise will miss the deadlines that lose the assets.
[ ] Name the conflicts early, since a single adviser for an estate with divergent beneficiaries has one and it is better introduced in month one than in a deposition.
[ ] Separate income disputes from reputation disputes, since beneficiaries frequently care more about portrayal than money and treating a reputation objection as a negotiation about percentages guarantees escalation.
[ ] Give the archive question a process, since whoever physically holds the papers controls access and access controls the biography.
[ ] Set a policy on unpublished material, where family sensitivity concentrates and discretion is widest.
[ ] Note the limits of moral rights, since the framework at 17 U.S.C. § 106A is confined to works of visual art and expires at death.
[ ] Prefer a sale of the business to an assignment of the mark, since a sale transfers the goodwill and avoids the assignment in gross problem the requirement in 15 U.S.C. § 1060 creates.
[ ] Write to the beneficiaries as a group about what exists, since a shared factual picture is the precondition for agreement and its absence the precondition for litigation.
[ ] [Gate] No exploitation decision is taken before the decision mechanism is agreed.

Phase 10. Plan during life, for incapacity as well as death

[ ] Build the schedule: one page, updated annually, listing works, registrations, licences with dates, domains, accounts, payors, and where the originals are kept. It converts an archaeological exercise into an administrative one.
[ ] Keep the licence file with execution dates, since the termination calculation depends on them and reconstructing them from a counterparty's records is unreliable.
[ ] Choose domicile deliberately where the persona has commercial value.
[ ] Address digital access in the form the digital assets legislation contemplates, since a provider's terms may otherwise defeat a fiduciary.
[ ] Name intellectual property expressly in the power of attorney, since a general financial power may not satisfy a counterparty and an incapacitated owner cannot execute a transfer under 17 U.S.C. § 204 or 35 U.S.C. § 261.
[ ] Plan for incapacity in the same conversation as death.
- Why. It is more likely in any given year, it arrives without notice, deadlines continue running, licences go unperformed, a mark tied to the individual's activity goes dark, and none of the machinery that handles death handles it. Clients resist the topic, and an adviser who defers it to a second conversation usually does not get one.
[ ] Consider consolidating into an entity during life, which survives the individual and avoids probate for the assets it holds.
[ ] Have the conversation with the family, since beneficiaries who know what exists administer it better than those who find a royalty statement in a drawer.
[ ] [Gate] The schedule exists and has been updated within twelve months.

A note on order

The phases are ordered by the cost of delay rather than by importance, which is why the least intellectually interesting work comes first.

Everything in Phase 1 is lost by inaction. A patent lapses for an unpaid fee, a registration lapses for a missed declaration, a mark dies of a suspended business, a domain is re-registered within hours, and a hard drive full of unpublished work goes into a skip while relatives clear a house. None of it can be recovered afterwards and all of it happens within weeks. An estate that spends its first month construing the will has spent it on the only document that will still be there in June.

Identification comes second because everything downstream depends on it, and because an estate tax return filed on an incomplete asset list produces an amended return, interest, and an argument about a past valuation date.

Ownership verification precedes valuation for the same reason: valuing an asset the deceased did not own is worse than not valuing it.

The termination table sits fourth because it is not urgent in any given month and is catastrophic to miss once — the classic profile of work that never gets done. Building it while the identification material is fresh is far cheaper than reconstructing it later.

Publicity, income, and valuation follow in sequence because each depends on the last.

Governance is deliberately late in the list and should be raised early in the relationship, because the beneficiaries' willingness to agree a structure declines steadily from the day of death and reaches zero once anyone has instructed separate counsel.

Phase 10 belongs to a different client — the living one — and is the phase that makes every other phase unnecessary.

[ ] Check whether an entity the deceased controlled has been dissolved or struck off, since rights held by a dissolved company do not simply revert to the estate and reinstatement may be required before anything can be transferred.
[ ] Confirm insurance cover for the estate's own administration, since an executor exercising rights, granting licences, or authenticating works is taking positions that attract claims and a general fiduciary policy may exclude them.
[ ] Identify any security interest recorded against the assets, since lenders take security over registered rights through a recordation practice distinct from ordinary personal property filing and a search of one register misses the other.

[ ] Diarise an annual review for as long as the estate or the successor entity holds the assets, covering maintenance fees, renewals, termination windows approaching their action dates, and payors who have stopped paying. Nothing in this checklist stays done, and a portfolio that generated income for thirty years will lose it quietly in the fourth decade if nobody is watching.

Outcome. An estate that has run this checklist has not lost a patent to a maintenance fee, a registration to a missed declaration, or a mark to a suspended business; knows which of the deceased's forty years of work it actually owns; holds a termination table diarised somewhere that outlasts the executor; and has told the beneficiaries what the will could not do while they were still speaking to each other. None of that is available to an estate that started with the will.

Sector notes

[ ] Music. One work generates income through performance, mechanical, synchronisation, and neighbouring rights channels, administered by different organisations, with composition and recording owned separately and often by different people. Get a statement from each and then look for the ones nobody mentioned.
[ ] Book publishing. Contracts run for the term of copyright with reversion tied to the work being in print, and the estate's position on that language is frequently better than the publisher's first answer suggests.
[ ] Film and television. Residual and participation payments run through guild designation systems that override the residuary estate for those payments.
[ ] Visual art. The physical work and the copyright are separate assets; transferring a painting does not transfer the reproduction right. Authentication becomes an estate function carrying real liability, which is why several artist estates have withdrawn from it entirely.
[ ] Software. Repositories, contributor licences, open source obligations, and running services. An estate inheriting a live product inherits an operational obligation, and somebody must decide within weeks whether to run it, sell it, or shut it down.
[ ] Academic work. Institutional policies frequently claim ownership of some categories, so the estate's interest is narrower than the bibliography suggests.
[ ] Photography. Enormous volumes of unregistered work, few records of what was licensed to whom, and physical originals whose value depends entirely on storage conditions.

Key Authorities at a Glance

| Authority | What it settles | Phase | |---|---|---| | 17 U.S.C. § 203 | Termination of post-1977 grants; statutory heirs | 4 | | 17 U.S.C. § 304 | Duration and termination for pre-1978 grants | 4 | | 17 U.S.C. § 302 | Duration: life plus seventy years | 7 | | 17 U.S.C. § 201 | Ownership, transfer, and works made for hire | 3 | | 17 U.S.C. § 101 | Definitions including work made for hire | 3 | | 17 U.S.C. § 204 | Transfers must be in writing and signed | 3, 10 | | 17 U.S.C. § 205 | Recordation of transfers | 2 | | 17 U.S.C. § 408 | Registration of claims | 2 | | 17 U.S.C. § 106A | Moral rights for works of visual art | 9 | | 35 U.S.C. § 261 | Patents are personal property, assignable in writing | 3, 10 | | 35 U.S.C. § 117 | Legal representative may apply for a deceased inventor | 1 | | 35 U.S.C. § 262 | Co-owners may practise and license without accounting | 3 | | 15 U.S.C. § 1060 | Assignment of marks with the goodwill of the business | 9 | | 15 U.S.C. § 1064 | Cancellation, including for abandonment | 1, 6 | | 15 U.S.C. § 1127 | Definitions including abandonment | 1 | | 15 U.S.C. § 1125 | False designation of origin, including false endorsement | 5 |

The five things people get wrong

One: starting with the will. The will is the document everybody has and it answers fewer questions here than anywhere else. It does not identify the assets, it cannot redirect the termination right, and it is silent about the maintenance fee falling due next month. The first month's work is a deadline list and a search, and an estate that spends it construing the will has spent it on the wrong thing.

Two: letting the business go quiet. A trademark exists through use, and an estate that suspends trading while probate proceeds is manufacturing the non-use period that destroys the asset. Reduced operation is fine and documented intent to resume is essential. This is entirely preventable and it happens constantly, because nobody responsible for the probate thinks of the mark as something that can die of neglect.

Three: never opening the tax returns. Ten years of royalty and licensing schedules name payors nobody in the family has heard of, and a single call to the accountant replaces weeks of searching. Estates instead search registries, which miss most copyright entirely, and conclude that the deceased owned less than they did.

Four: telling the family about the termination right too late. The right vests in a statutory class — spouse, children, grandchildren — regardless of what the will says. Where the will and the class diverge, and they frequently do in second marriages, the parties learn about it from opposing counsel rather than from the estate's adviser. Introduced in month one it is a planning problem; introduced in year three it is litigation between people who no longer speak.

Five: valuing before identifying. The estate tax return is filed, the divorce settles, and two years later a royalty stream surfaces from an agency nobody knew existed. That produces an amended return, an argument with an examiner about a past date, and in a divorce a motion to reopen. The identification phase is the least interesting work in the exercise and everything downstream is worthless without it.