Where there’s a will, there’s a way: Intestacy and IP in the UK

President George W. Bush presents Aretha Franklin with the Presidential Medal of Freedom Wednesday, Nov. 9, 2005, during ceremonies in the East Room of the White House. Photo by Paul Morse, Courtesy of the George W. Bush Presidential Library and Museum

Passing away without a will – known in the UK as Intestacy – creates considerable issues for the surviving relatives says Matthew Barnett of Harbottle & Lewis LLP

It has been widely reported in the press that Aretha Franklin, the legendary soul singer, passed away without leaving a will, this is known as dying intestate. Aretha left four sons, all with different fathers, and one of whom reportedly requires a ‘guardian’ to manage his affairs.

In the UK, the absence of a will can often create considerable issues for the surviving relatives but it has added complications for celebrities, authors, songwriters, artists and other creatives who have built up substantial intellectual property rights (IP) during their lives.

Deceased’s wishes

Where there is no Will, the statutory intestacy rules will apply to determine those entitled to a share in a deceased’s estate. The rules will often not divide the estate as the deceased would have wished.

Inheritance tax

Depending on the size of the estate, where a deceased is survived by a spouse and children, this can lead to unnecessary inheritance tax becoming due. This is because under the intestacy rules the spouse would not be entitled to the whole estate (it would be shared between the spouse and the children) and the estate will lose the benefit of a full spouse exemption.

Who administers the estate

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By dying intestate the decision over who administers a deceased’s estate is lost and the Non-Contentious Probate Rules will apply to identify the persons with a right to act in the administration. As a general rule, these rules follow the intestacy rules so the persons entitled to share the estate are also the persons able to apply to formally administer the estate.

Particular issues where there is IP

Often a literary agent or a trustee, with experience in IP exploitation, is appointed in a Will to manage and exploit the IP. On an intestacy it will be those entitled to share the estate who also become the owners of the IP ongoing, and there will often be several ‘owners’.
This can prove unattractive to film companies, music producers or publishers interested in licensing or otherwise commercially exploiting the IP in the deceased’s work.

Negotiating commercial deals may become difficult and convoluted where there are a number of owners of the IP, perhaps with conflicting interests, financial goals or views.

Further, the prospect of having to report and divide any ongoing royalties multiple ways to each owner, rather than to one agent or trustee who is responsible for dividing between the eventual beneficiaries, is another layer of unwelcome complexity.

Picture credit brett jordan @flickr

The estates of artists is already a litigious area, with a number of disputes relating to the ‘ripping off’ of the deceased’s music. For example, in 2014, Marvin Gaye’s estate successfully pursued legal action against Robin Thicke for ripping off the song “Got to Give it Up” in his song “Blurred Lines”. Where there is a lack of proactive management of a deceased’s IP this type of ripping off may become more prevalent and less challenged.
With the emergence of new types of celebrity, such as vloggers and social media influencers, the question of what happens to digital assets after death has grown in importance. The legal landscape on these types of ‘asset’ is still unclear and there has been recent litigation across Europe on this. However, just as with other IP, properly considering and dealing with digital assets through Will planning can at least reduce, albeit not eradicate, the uncertainty on death.

As Aretha once sang “You’ve got to think, think about what you’re trying to do…[to me]” (Think, Aretha Franklin, 1968).