Post-Mortem Rights Checklist: Domicile, Term, Registration, Chain of Title, and Licensing

By Casey Scott McKay · 2024-10-18

Whether a personality's rights survive death depends on where they lived when they died, and most of what an estate loses is lost in the first year through registration failures and fragmentation. This checklist runs the administration in fourteen phases: establish domicile, analyze descendibility, register, read the will, consolidate the interests, build the trademark layer, calendar copyright terminations, separate the archive, write the licensing policy, address digital replicas, handle valuation and tax, enforce, prepare for diligence, and plan during life for a living client. Each box gives the reason, the authority, and the trap. Boxes marked as gates should clear in the first six months. Two contrasting estates run throughout.

IP and Technology > Right of Publicity | Checklist | Published 18 October 2024 - Updated 10 November 2025 | Casey Scott McKay - marksy.us

Summary. Whether a personality's rights survive death depends on where they lived when they died, and most of what an estate loses is lost in the first year through registration failures and fragmentation. This checklist runs the administration in fourteen phases: establish domicile, analyze descendibility, register, read the will, consolidate the interests, build the trademark layer, calendar copyright terminations, separate the archive, write the licensing policy, address digital replicas, handle valuation and tax, enforce, prepare for diligence, and plan during life for a living client. Each box gives the reason, the authority, and the trap. Boxes marked as gates should clear in the first six months. Two contrasting estates run throughout.

Keywords: domicile evidence, descendibility, statutory term, registration precondition, testamentary devise, residuary clause, intestate shares, fractional interests, consolidation entity, trademark layer, copyright termination windows, archive ownership, licensing policy, approval rights, quality control, non-use termination, digital replica consent, estate tax valuation, enforcement sequencing, diligence and sale

How to use this checklist

| Phase | What it covers | When | |---|---|---| | 1 | Establish domicile | Month one | | 2 | Descendibility analysis | Month one | | 3 | Register | Month two | | 4 | Read the will | Month two | | 5 | Consolidate | Months four to six | | 6 | The trademark layer | Months four to six | | 7 | Copyright terminations | Month three | | 8 | The archive | Month three | | 9 | Licensing policy | Month six | | 10 | Digital replicas | Month six | | 11 | Valuation and tax | Month six | | 12 | Enforcement | Ongoing | | 13 | Diligence and sale | As needed | | 14 | Planning during life | For living clients |

Boxes marked [Gate] should clear in the first six months.

The matters. A musician who died in the 1990s domiciled in a long-term registration state, and a film actor who died in the 1970s domiciled in a state whose courts later held the right does not survive death.

Phase 1. Establish domicile at death

[ ] [Gate] Collect the evidence in month one.
- Why. Death certificate, tax returns and their filing state, voter registration, driver licensing, property ownership and actual use, memberships, family location, place of medical treatment, and the decedent's own statements.
- Trap. Beginning the licensing work before answering this, and discovering in year two that there is no asset.
[ ] Apply the standard: physical presence plus intent to remain.
[ ] Note the retirement move.
- Why. Personalities relocate late in life and the move can extinguish or create a valuable asset without anyone considering it.
[ ] Treat foreign domicile separately.
- Trap. Assuming the domestic framework travels. Many jurisdictions treat personality rights as personal and non-descendible.
[ ] Deliverable: a memorandum stating the domicile with documents attached.

Phase 2. Descendibility analysis

[ ] Determine whether the domicile state recognizes a post-mortem right, by statute or at common law.
[ ] Determine the term.
- Authority. Cal. Civ. Code § 3344.1 — seventy years; Tenn. Code § 47-25-1104 — ten years continuing on exploitation; Ind. Code § 32-36-1-8 — a hundred years; N.Y. Civ. Rights Law § 50-f — forty years.
[ ] Determine the conditions.
- Why. Registration, commercial exploitation during life, continued use, and the expressive-work carve-outs.
[ ] Check retroactivity where the decedent died before enactment or amendment.
[ ] Determine the covered attributes.
- Why. Name and likeness always; voice, signature, and mannerisms depending on the state.
[ ] Deliverable: right exists or does not, term, expiry date, conditions, attributes — on one page.

Phase 3. Register

[ ] [Gate] File in month two where a mechanism exists.
- Authority. Cal. Civ. Code § 3344.1; N.Y. Civ. Rights Law § 50-f.
- Trap. The single most common and most avoidable failure in this practice, because the executor does not know the requirement exists.
[ ] Register in the name of the correct holder, or file an interim registration and assign later.
[ ] Calendar any renewals.
[ ] Understand the consequence of late registration.
- Why. In some states no action lies for uses occurring before registration.

Phase 4. Read the will for the right

[ ] Look for a specific devise. Cleanest and rarest.
[ ] Look to the residuary.
- Why. Most statutes provide the right passes by will, and several provide it passes under a residuary clause if not specifically devised.
[ ] Check for lifetime transfers.
- Trap. Old merchandising or endorsement agreements containing broader grants than anyone recalls.
[ ] Apply intestate distribution where there is no will.
[ ] Read any trust instrument the same way.
[ ] Deliverable: a chain-of-title chart from the decedent forward, with instruments attached.

Phase 5. Consolidate

[ ] [Gate] Assemble fractional interests into a single entity.
- Why. A limited liability company or trust, with a professional manager and a family advisory role.
- Trap. Deferring to the second generation, by which point three heirs have become twenty-six great-grandchildren and consents cannot be assembled.
[ ] Address governance.
- Why. Who decides on licensing, what requires a supermajority, how distributions work.
[ ] Add transfer restrictions so interests do not fragment through sales and divorces.
[ ] Address succession within the entity.
- Trap. Without it, the fragmentation problem recurs one generation later.
[ ] Check whether one holder may sue alone.
- Why. Several regimes require all holders to join.

Phase 6. The trademark layer

[ ] File applications for the name, signature, or stylized likeness in the categories the estate will license.
- Authority. 15 U.S.C. § 1051; 15 U.S.C. § 1052.
[ ] Address the consent requirement for a mark identifying a deceased person.
- Authority. 15 U.S.C. § 1052(c).
[ ] Understand what trademark reaches.
- Why. Source-identifying uses only. It does not reach a poster or shirt bearing a portrait.
[ ] Maintain quality control over licensees.
- Trap. A mark licensed without it can be abandoned through naked licensing.
[ ] Calendar renewals.
- Why. The publicity term expires; a mark used in commerce does not. This is the durable layer.
[ ] Enforce under 15 U.S.C. § 1114 and 15 U.S.C. § 1125.

Phase 7. Copyright terminations

[ ] [Gate] Inventory the copyrights the estate actually holds.
- Trap. Assuming the personality owned the photographs, films, and recordings. Frequently a studio or label did.
[ ] Calendar the termination windows.
- Authority. 17 U.S.C. § 203 for post-1977 grants; 17 U.S.C. § 304 for older ones.
- Why. Strict, permanently closing, and frequently worth more than the publicity right.
[ ] Confirm duration.
- Authority. 17 U.S.C. § 302.
[ ] Prepare and serve notices within the windows.

Phase 8. The archive

[ ] Inventory the physical materials and their location.
[ ] Separate ownership of objects from ownership of copyrights.
- Trap. Licensing reproduction rights the estate does not hold, discovered when the actual copyright owner objects.
[ ] License archive access as a separate transaction, with separate consideration.
[ ] Address the emotional weight of personal materials.
- Why. A licensing program that treats a personal archive as inventory will fracture a family.
[ ] Secure and catalogue.
- Trap. An uncatalogued archive in storage, which is the outcome in the second worked estate below.

Phase 9. The licensing policy

[ ] Write it before the first request.
- Why. An estate deciding case by case will be inconsistent, and inconsistency dilutes the asset.
[ ] Set permitted and excluded categories.
- Why. Most estates exclude tobacco, firearms, adult content, political endorsements, and anything inconsistent with the personality's known positions. The exclusions are what make the estate credible elsewhere.
[ ] Require artwork and copy approval with a stated turnaround.
[ ] Require quality standards and inspection.
[ ] Price by category.
[ ] Draw category definitions narrowly before granting exclusivity.
[ ] Include goodwill and no-challenge provisions in the license.
- Trap. Standard in trademark practice and routinely omitted from publicity licenses.
[ ] Require guaranteed minimums, so a licensee that stops selling does not tie up a category.
[ ] Address termination and sell-off.
[ ] Track continued use where the statute conditions the right on it.
- Authority. Tenn. Code § 47-25-1104.
- Why. Under a non-use termination model, a licensing gap is a countdown rather than a quiet period.
[ ] Respect the expressive-work boundary.
- Trap. Demanding licensing for biographies, documentaries, and news uses loses publicly and damages standing for the claims that matter.

Phase 10. Digital replicas

[ ] State the position in the policy before a request arrives.
- Why. The answer given under time pressure tends to be broader than intended.
[ ] Apply the same specificity required of the living.
- Why. Use description, exclusions, term, separate compensation, data and model retention, destruction, and assignment.
[ ] Check the statute.
- Authority. N.Y. Civ. Rights Law § 50-f.
[ ] Consider what the personality would have wanted, and whether any instruction exists.

Phase 11. Valuation and estate tax

[ ] Engage an appraiser who has valued these before.
- Why. The asset produces no current income in many estates, and an assessment will not reflect that on its own.
[ ] Understand the exposure.
- Trap. An asset assessed at a value the estate must fund, resolved by selling the very rights being administered.
[ ] Establish the basis and the documentation.
[ ] Where planning is still possible, transfer during life to value at transfer rather than at death.

Phase 12. Enforcement

[ ] Build the watch.
- Why. Marketplace listings, print-on-demand platforms, social commerce, and trade shows. Most post-mortem infringement is low-value, high-volume merchandising found by monitoring.
[ ] Sequence by cost. Marketplace takedown, demand letter, then suit.
[ ] Confirm standing before suing.
- Why. Title, registration where required, and whether all fractional holders must join.
[ ] Pick the claim that travels.
- Authority. State publicity where descendible; 15 U.S.C. § 1114 where registered; 15 U.S.C. § 1125 for false endorsement, which does not depend on state descendibility.
[ ] Seek injunctive relief early.
- Authority. Fed. R. Civ. P. 65.
[ ] Enforce consistently.
- Trap. Selective enforcement invites acquiescence arguments and undermines paying licensees.
[ ] Record the enforcement history.

Phase 13. Diligence and sale

[ ] Assemble what a buyer will ask for.
- Why. Domicile evidence, descendibility analysis, registration certificates, complete chain of title, entity documents, every license live or expired, the trademark portfolio with renewal status, the copyright inventory with termination status, the archive inventory, the enforcement history, and the tax basis.
[ ] Fix what sinks transactions.
- Why. A gap in the chain, an unregistered right in a registration state, unconsolidated fractional interests, a forgotten exclusive license, lapsed trademarks, or a closed termination window.
[ ] Convey asset by asset, with recordation for trademarks and copyrights.
[ ] Assign accrued claims expressly.
- Trap. Without it the buyer acquires no right to sue for past infringement.
[ ] Expect earnouts, because value depends on licensing that has not happened and an estate cannot indemnify meaningfully.
[ ] Consider a charitable structure where the family prefers legacy to income, understanding it forecloses family revenue.

Phase 14. Planning during life

[ ] Raise the domicile question with any living client whose persona has value.
- Why. Five minutes, and nobody else in the room will raise it.
[ ] Devise the right specifically, avoiding both the residuary question and fragmentation in one clause.
[ ] Transfer to an entity during life where fragmentation is foreseeable.
[ ] Name a competent administrator, and consider a special fiduciary for intellectual property.
[ ] Take the trademark registrations now.
[ ] Leave a letter of wishes covering categories and the replica position.
[ ] Inventory the assets while the client can identify them.
[ ] Coordinate with the tax plan.
[ ] Register during life where permitted, and calendar the post-death filing where not.

Phase 15. The five assets, separated

"The rights to a personality" is not one asset. Confirm which of these the estate holds before answering any licensing inquiry.

[ ] The publicity right. Name, likeness, voice, and depending on the state signature and mannerisms. State law, domicile-dependent, expiring on a statutory term. Frequently the shortest-lived of the five.
[ ] Trademarks. Source-identifying uses of a name, signature, or stylized likeness. Renewable indefinitely on continued use.
- Trap. Expecting a trademark to reach a poster or a shirt bearing a portrait. Those are not source-identifying uses.
[ ] Copyrights. In photographs, films, recordings, writings, and artwork, owned by whoever created or acquired them — for a performer, frequently a studio or a label.
[ ] Physical property. Manuscripts, photographs, costumes, instruments, correspondence, and memorabilia.
- Trap. Treating ownership of the object as ownership of the copyright in it.
[ ] Contract rights. Royalties, participations, and residuals under agreements signed during life.
[ ] [Gate] Be able to say in one sentence which of the five is being licensed.
- Why. An estate that answers "all of them" without documentation has not completed Phases 4, 7, and 8, and it will either over-grant or fail to deliver.

Phase 16. Working with the family

The legal analysis is the easy part. The practical failures are rarely doctrinal.

[ ] Separate the fiduciary role from the family role.
- Why. The publicity right is a commercial asset requiring commercial judgment, and the executor competent to handle real property may not be the right person to run a licensing program.
[ ] Consider a special fiduciary or an intellectual property co-trustee.
[ ] Get the licensing policy agreed in writing, early.
- Why. A family that agreed in advance on excluded categories will not relitigate each request.
[ ] Anticipate the legacy-versus-revenue disagreement in the entity's governance.
- Why. Supermajority requirements for category expansions, a professional manager with defined authority, and a dispute mechanism short of litigation.
[ ] Look for a letter of wishes, and where none exists, record the family's recollection of the person's views once rather than debating it repeatedly.
[ ] Handle the archive's emotional weight separately from its commercial value.
[ ] Manage expectations about value.
- Trap. An estate expecting substantial income from a persona with modest commercial demand, discovered after significant administration expense.

Phase 17. The licensee's questions, answered in advance

An estate that can answer these without delay closes deals. One that cannot is doing diligence in the middle of a negotiation.

[ ] Where was the personality domiciled at death? Have the death certificate ready.
[ ] Does a descendible right exist under that state's law, and is it still running?
- Trap. An estate licensing an expired right, or one terminated for non-use, is selling nothing.
[ ] Is it registered where registration is required? Have the certificate.
[ ] Who holds it, and can they grant alone?
- Why. Fractional interests are the norm, and a license from one of five holders may be worth less than it appears.
[ ] Which of the five assets is being licensed?
[ ] What warranties will the estate give, and what stands behind them?
- Why. An estate with no assets beyond the right cannot indemnify meaningfully, which is a reason for payments over time.
[ ] Have others been licensed in this category?
- Trap. Overstated exclusivity, with prior grants surfacing later.
[ ] Is the intended use within an expressive-work carve-out anyway?
- Why. Licensees pay for permission they do not need for biographical, documentary, and news uses more often than anyone admits.
[ ] What is the position on digital replicas?
- Why. Increasingly the question that matters most, and the one estates are least prepared for.

Phase 18. Failure modes, collected

[ ] The domicile question answered late, after licensing work began.
[ ] Nobody registers.
[ ] Fragmentation left alone until consents cannot be assembled.
[ ] The chain never documented, so title cannot be proven when asked.
[ ] Trademark neglected, so the term expires with nothing durable underneath.
[ ] Copyright termination windows missed.
[ ] The archive treated as licensed.
[ ] Licensing lapses under a non-use model while everyone assumes the right is preserved.
[ ] Overreach against expressive works, losing publicly.
[ ] Inconsistent enforcement, inviting acquiescence arguments.
[ ] Broad exclusivity granted across an unnarrowed category definition.
[ ] No goodwill or no-challenge provisions in the license.
[ ] No guaranteed minimums, so a dormant licensee ties up a category.
[ ] No plan for the tax, resolved by selling the rights being administered.
[ ] The wrong fiduciary.
[ ] No letter of wishes, so the family litigates what the personality would have wanted.
[ ] Accrued claims not assigned on a sale, so the buyer cannot sue for past infringement.

Phase 19. The license agreement

The estate's form should be short and should do seven things. Confirm each.

[ ] Identify precisely what is granted.
- Why. Which of the five assets, which attributes, which categories of goods or services, which territories, and for how long.
- Trap. A grant of "the right to use the Personality," which is not a grant.
[ ] Reserve everything not granted, expressly, including future media and digital replication.
[ ] Set the approval process with a stated turnaround.
- Why. Approval unreasonably withheld will be litigated; approval with a defined process rarely is.
[ ] Set quality standards and inspection rights.
[ ] Set the financial terms.
- Why. Advance, royalty rate, guaranteed minimum, reporting cadence, audit rights, and shortfall consequences.
[ ] Address termination and sell-off, including unsold inventory and tooling.
[ ] Include the two provisions estates forget.
- Why. A no-challenge covenant, and a provision that the licensee acquires no rights through use — the goodwill inures to the estate.
[ ] Resist broad exclusivity.
- Trap. An exclusive grant for "apparel" forecloses a great deal for a term measured in years.

Phase 20. The first-year sequence

[ ] Month one. Domicile established with documents. Descendibility determined, with term, conditions, and covered attributes.
[ ] Month two. Registration filed. Will or trust read for the right.
[ ] Month three. The other four assets inventoried. Copyright termination windows calendared.
[ ] Months four to six. Fractional interests consolidated. Trademark applications filed.
[ ] Month six. Licensing policy written, including the replica position. Appraiser engaged for the tax valuation.
[ ] Ongoing. License, enforce, renew — and under a non-use termination model, keep licensing, because that is what keeps the right alive.
[ ] Confirm the pace is realistic.
- Why. Less than a year of part-time attention from a competent fiduciary. Estates that skip it lose the right gradually — through registration failures, fragmentation, missed windows, and lapsed use — and by the time anyone notices there is nothing left to administer.

Phase 21. When no descendible right exists

A personality domiciled at death in a state recognizing no post-mortem right leaves no publicity asset. Estates treat this as the end of the analysis. It is not.

[ ] Assess the false endorsement claim.
- Authority. 15 U.S.C. § 1125(a).
- Why. It reaches uses suggesting sponsorship or approval, does not depend on state descendibility at all, and fits advertising and endorsement uses well.
[ ] File trademark applications.
- Authority. 15 U.S.C. § 1051; 15 U.S.C. § 1114.
- Why. A name or signature used as a source identifier is registrable and enforceable indefinitely, and the estate is the consenting party under 15 U.S.C. § 1052(c).
[ ] Inventory and enforce the copyrights.
- Authority. 17 U.S.C. § 203; 17 U.S.C. § 304.
- Why. Photographs, recordings, films, and writings the estate owns are enforceable on their own terms, and terminations may recapture more.
[ ] License archive access as an independent asset.
[ ] Continue the contract rights.
[ ] Build the program on what remains.
- Why. In many cases a program built on trademark, copyright, archive access, and false endorsement is more durable than one built on a publicity term that will expire — which is why the estates that thrive across generations usually built it either way.

Phase 22. Budget and staffing

[ ] Budget the first year.
- Why. Domicile evidence, descendibility analysis, registration, will review, asset inventory, and consolidation. Modest by estate administration standards and small relative to what it protects.
[ ] Budget the trademark program.
- Why. Application costs per class per mark, prosecution, and renewals every decade. The expense that compounds in the estate's favor.
[ ] Budget the copyright work, front-loaded, with notice preparation and filing inside the windows.
[ ] Budget the licensing program.
- Why. A part-time manager for most estates, plus counsel for the form and negotiations.
[ ] Budget enforcement realistically.
- Why. Marketplace monitoring is inexpensive and mostly automated; litigation is not, and it should be reserved for uses that damage the licensing program.
[ ] Engage the appraiser early enough to inform the return rather than to defend it.
[ ] Staff for commercial judgment.
- Trap. Assuming general estate counsel can handle it, or that an enthusiastic family member can run a licensing program.
[ ] Tell the family the six things at the outset.
- Why. That the right's existence depends on domicile at death; that registration may be a precondition and the window matters; that the publicity right expires and trademarks do not; that consolidation must happen now; that most post-mortem rights generate modest income; and that the first year's decisions determine what exists to administer in thirty.

Phase 23. Diligence, sale, and succession

[ ] Assemble the diligence package before it is requested.
- Why. Domicile evidence and death certificate, descendibility analysis, registration certificates, complete chain of title, entity documents, every license live or expired with exclusivity and territory, the trademark portfolio with renewal status, the copyright inventory with termination status, the archive inventory and location, the enforcement history, and the tax basis.
[ ] Fix the defects that sink transactions.
- Why. A gap in the chain, an unregistered right in a registration state, unconsolidated interests, a forgotten exclusive license, lapsed trademarks, or a closed termination window.
[ ] Convey asset by asset, with recordation for trademarks and copyrights.
[ ] Assign accrued claims expressly.
[ ] Expect an earnout, because value depends on licensing that has not happened and the estate cannot indemnify meaningfully.
[ ] Address succession inside the consolidation entity.
- Why. What happens on a member's death — whether interests pass freely, whether the entity may redeem, and whether transfer restrictions survive.
- Trap. Without those provisions the fragmentation problem simply recurs one generation later.
[ ] Consider a charitable structure where the family prefers legacy to income.
- Why. It addresses valuation, governance, and legacy at once, and it forecloses family revenue — a decision for the personality during life rather than for the heirs afterward.

Phase 24. Planning during life, for a living client

Almost every problem in this checklist is cheaper to solve before death, and none of it appears in a standard estate plan.

[ ] Raise the domicile question.
- Why. A client contemplating a move should know whether it extinguishes or creates a descendible right. Five minutes, and nobody else advising them will raise it.
[ ] Devise the right specifically, which avoids both the residuary question and fragmentation in one clause.
[ ] Transfer to an entity during life where fragmentation is foreseeable.
[ ] Name a competent administrator, with a special fiduciary for intellectual property where appropriate.
[ ] File the trademarks now.
- Why. Cheaper during life, use established earlier, and they outlive everything else.
[ ] Obtain a letter of wishes covering permitted and excluded categories and the position on digital replication.
[ ] Inventory the assets while the client can identify them.
- Trap. Executors routinely spend the first year discovering what exists and where it is.
[ ] Coordinate with the tax plan, because a right transferred during life is valued at transfer rather than at death.
[ ] Register during life where permitted, and calendar the post-death filing where not.

Outcomes. The musician's estate registered in year one, consolidated in year two, filed trademarks for the name and a stylized signature, exercised copyright termination on two grants in the correct windows, and has run a published licensing policy with approvals, guaranteed minimums, and marketplace enforcement ever since. The publicity term expires within decades; the trademarks do not. The actor's estate litigated domicile for years and lost, leaving no publicity right — and never used the false endorsement claim it had, never registered the trademarks available to it, and never catalogued the photographs it owned outright. The difference was not the value of the personality. It was whether anyone did the work in the first year.

Key Authorities at a Glance

| Authority | Proposition | Phase | |---|---|---| | Cal. Civ. Code § 3344 | Right during life | 2 | | Cal. Civ. Code § 3344.1 | Post-mortem right; registration | 2, 3 | | Tenn. Code § 47-25-1104 | Term; continuation on use | 2, 9 | | Tenn. Code § 47-25-1105 | Personal rights protection | 2 | | Ind. Code § 32-36-1-8 | Broad attributes; long term | 2 | | N.Y. Civ. Rights Law § 50-f | Deceased performers; registration; replicas | 3, 10 | | N.Y. Civ. Rights Law § 51 | Civil action | 12 | | 15 U.S.C. § 1051 | Trademark application | 6 | | 15 U.S.C. § 1052 | Registrability; consent | 6 | | 15 U.S.C. § 1114 | Registered mark infringement | 6, 12 | | 15 U.S.C. § 1125 | False endorsement | 12 | | 17 U.S.C. § 203 | Termination of post-1977 grants | 7 | | 17 U.S.C. § 302 | Copyright duration | 7 | | 17 U.S.C. § 304 | Renewal and termination | 7 | | Fed. R. Civ. P. 65 | Injunctive relief | 12 |

The five things people get wrong

One: they start licensing before establishing domicile. Whether a descendible right exists at all follows the decedent's domicile at death, and the evidence disperses. Estates have litigated this question for years and lost.

Two: nobody registers. In the states that require it, no action lies for uses before registration. It is inexpensive, it takes a month, and general estate counsel has usually never encountered the requirement. Cal. Civ. Code § 3344.1.

Three: they leave fractional interests alone. Three heirs become nine grandchildren become twenty-six great-grandchildren, and at some point nobody can assemble the consents a license requires. Consolidate while the holders are few.

Four: they miss the copyright termination windows. 17 U.S.C. § 203 and 17 U.S.C. § 304 have strict windows that close permanently, and the recaptured rights are frequently worth more than the publicity right the estate is focused on.

Five: they treat the publicity right as the only asset. It is one of five, and it is the one that expires. An estate with no descendible right still has false endorsement, trademarks, copyrights, and archive access — and the estates that endure for generations are the ones that built the durable layer either way. See Administering a Deceased Personality's Rights.