Intellectual property can be one of the most valuable, yet misunderstood, assets in deceased estate planning and administration. Unlike physical assets such as real property, intellectual property rights are vulnerable to lapsing, fragmentation, and erosion during estate administration without active management. Australian succession law also interacts with intellectual property in unique ways that can produce unintended and irreversible consequences.

This article explores the key risks affecting different categories of intellectual property and explains why targeted intellectual property estate planning is essential for protecting long‑term value and minimising disputes.

Registered trade marks and patents

Registered trade marks and patents are statutory monopolies governed by the Trade Marks Act 1995 (Cth) and Patents Act 1990 (Cth). Registered trade marks must be renewed every ten years,¹ while standard patents require the payment of annual renewal fees from the fourth anniversary of filing onward.² Failure to pay renewal fees within the prescribed timeframes will generally result in the permanent cessation of the right, subject only to narrow discretionary extensions.

Estate administration creates significant risk around policing renewal deadlines for registered trade marks and patents. Where probate is delayed, the will is contested, or an executor is unfamiliar with the deceased’s intellectual property portfolio, renewal deadlines may be missed through oversight rather than intention.

A registered owner may renew a registered patent or trade mark within six months after the renewal date,³ subject to payment of a late renewal fee. However, estate administration issues such as delays in appointing an executor, uncertainty as to asset ownership, or lack of awareness that a registration exists can readily exhaust this six‑month window. Once this grace period expires without renewal, the trade mark or patent registration will lapse and be removed from the Register.

Additionally, trade mark registrations are uniquely vulnerable to removal for non-use during estate administration. A registered trade mark may be removed if it has not been used in Australia for a continuous period of three years.⁴ Estate administrations frequently involve business disruption, including the temporary cessation of trading, restructuring, or ownership uncertainty. Executors must therefore actively manage trade mark use, including through licensing arrangements or limited trading activity, to protect brand rights during administration.

Copyright

Copyright in most literary, artistic, musical, and dramatic works generally subsists for 70 years after the death of the author.⁵ Copyright may also exist in sound recordings, cinematograph films, television or sound broadcasts, and published editions. However, copyright does not automatically pass with ownership of the physical medium. For example, a beneficiary may inherit the original manuscript of a literary novel but not the right to reproduce or license it. If not properly understood, this distinction can lead to disputes when commercial opportunities later arise.

A deceased person may also have contractual rights and obligations relating to copyright, including royalty arrangements and intellectual property licence agreements. Such contractual arrangements do not automatically terminate on death. In many cases, the deceased’s estate steps into their position under the contract, and executors and beneficiaries remain bound by the terms agreed during the deceased’s lifetime.

For example, if the deceased granted a licence to use a copyrighted work, the licensee will ordinarily retain the benefit of that licence after the creator’s death, and the estate will continue to be bound by its terms. Executors generally cannot revoke or vary existing licences simply because the copyright owner has died, unless the contract expressly permits termination on death. Moreover, certain agreements may require a formal assignment of contractual rights before payments can be received by beneficiaries. This means that even where a beneficiary inherits copyright, they may be unable to collect royalties, licence fees or other payments until the executor has formally transferred the relevant contractual entitlements. Delay or oversight at this stage can disrupt income streams and create uncertainty for licensees and administrators.

Additional complexity arises where contracts are either silent on succession, non‑assignable without consent, or governed by foreign law. Some agreements may require notice of death, formal novation, or the consent of third parties before rights can be exercised by beneficiaries. Careful management of copyright‑related contracts during estate administration is therefore essential to ensure continuity of licensing arrangements, uninterrupted royalty payments, and proper transfer of commercial control to the intended beneficiaries.

Moral rights

Moral rights protect the personal and reputational interests of creators in their works. Under Part IX of the Copyright Act 1968 (Cth), these include the right of attribution, the right against false attribution, and the right of integrity.

Moral rights generally endure for the same period as copyright, which is typically 70 years after the author’s death. They cannot be sold, assigned or transferred, either during life or on death. However, moral rights do not extinguish upon death. An executor, or other person expressly appointed under a will, may exercise and enforce moral rights on behalf of the deceased author.

This is particularly relevant where works are adapted, restored, digitised, or publicly exhibited after death. Without clear authority being granted under a will, disputes may arise between beneficiaries about whether particular uses prejudice the deceased’s reputation or artistic intent. Additionally, uncertainty as to who is entitled to enforce moral rights may also complicate responses to alleged derogatory treatment or misattribution of works.

Social media and online accounts

Social media accounts, cloud services and online platforms are increasingly central to personal branding, creative businesses and commercial goodwill. However, these assets are not governed principally by intellectual property or succession law. Instead, access and control are determined by contract, through non‑transferrable personal licences set out in a platform’s terms of service.

Many major platforms treat user accounts as personal licences that do not survive death or cannot be transferred to another person. As a result, executors do not automatically acquire a legal right to access or control accounts, even where probate has been granted. In practice, platforms frequently refuse to provide access without login credentials or prior authorisation.

For example, platforms such as Facebook and Instagram typically offer only limited options following an account holder’s death, including memorialisation or permanent deletion. Ongoing management, monetisation, or post‑death use is generally prohibited. This creates particular difficulty where social media accounts generate advertising revenue or form a core part of a business. Without careful planning, the commercial value associated with follower networks and digital presence may disappear immediately on death.

Emerging digital assets

Emerging digital assets, including cryptocurrencies, blockchain‑based tokens and non‑fungible tokens, present some of the most acute estate‑planning risks. These assets are decentralised by design, and are not controlled by banks, registries, or other central authorities that can verify death or restore access. Control depends entirely on the possession of private keys or seed phrases. If those credentials are lost, forgotten or not disclosed prior to death, the digital asset may be permanently inaccessible, regardless of the size or value of the holding.

Courts and executors have no technical or legal ability to compel blockchain networks to reverse transactions, reset credentials, or reassign access. For example, following the death of the founder of the Canadian cryptocurrency exchange QuadrigaCX in 2018, substantial cryptocurrency holdings were rendered inaccessible because the deceased founder was the sole person with knowledge of the relevant private keys. Despite court proceedings and forensic investigations, the assets could not be recovered.

The decentralised and immutable nature of blockchain technology prevents intervention even where legal entitlement under a will or probate is clear. Substantial digital wealth can be irretrievably lost following death due to inadequate planning or failure to pass on access credentials. For estates holding digital assets, effective planning must carefully reconcile confidentiality and security during life with practical accessibility after death.

Intestacy

Where a person dies without a valid will, distribution of their estate is governed by intestacy legislation. In South Australia, this is primarily contained in Part 3A of the Administration and Probate Act 1919 (SA). Under these provisions, estate assets are divided between spouses, domestic partners, children, and other relatives.

Intestacy frequently leads to intellectual property being divided between multiple beneficiaries with no shared commercial strategy. Fragmentation of ownership often makes licensing, enforcement, or sale impractical. Disagreements are particularly likely where one beneficiary operates a business that is reliant on the intellectual property while others do not. Without unanimous consent, intellectual property may remain under‑exploited or become the subject of litigation. The risk of deadlock is particularly high where beneficiaries have different levels of involvement, expertise, or emotional connection to the intellectual property.

Management and enforcement during administration

Executors owe fiduciary duties to preserve and protect estate assets, including intellectual property. Unlike other assets, intellectual property demands active oversight during administration. For example, executors must:

• identify intellectual property rights, including registrations, unregistered rights, licences, assignments, and contractual arrangements;
• meet renewal obligations;
• maintain trade mark use to avoid non‑use vulnerability. This may require maintaining limited trading activity or authorising licensees to use the mark under controlled conditions; and
• enforce intellectual property rights. This includes taking action against third‑party infringers and addressing unauthorised use by beneficiaries.

Disputes commonly arise where beneficiaries begin using intellectual property before formal transfer occurs. Such use may constitute infringement and expose both the beneficiary and the estate to risk. Given the complexity and potential liability involved, early estate planning is essential.

Effective intellectual property estate planning

Effective intellectual property estate planning requires deliberate and careful drafting. Generic wills rarely provide sufficient clarity or protection where intellectual property is significant. Best practice includes clearly identifying all intellectual property assets and expressly allocating ownership. Executor selection is also critical. An executor with commercial literacy or authority to engage specialist advisers can materially influence outcomes.

Ultimately, proper intellectual property estate planning can transform intellectual property from a vulnerable asset into a protected and enduring legacy.

HWLE Lawyers’ intellectual property and wills and estates teams have extensive experience in advising businesses regarding estate planning for intellectual property assets. If you are concerned about intellectual property estate planning or administration, please contact us for further information on how we can assist you.

This article was written by Imogen Cook, Partner, Luke Dale, Partner, and Jasper Dowdell, Law Graduate.

¹ Trade Marks Act 1995 (Cth) s 72(3).
² Patents Act 1990 (Cth) s 142.
³ Trade Marks Act 1995 (Cth) s 79; Patents Regulations 1991 (Cth) reg 13.3(1A).
⁴ Trade Marks Act 1995 (Cth) s 92(4)(b).
⁵ Copyright Act 1968 (Cth) s 33(2).