What Happens to an Inventor’s Patents After They Die?

I’ve worked in patent law for long enough to know that the relationship between a patent attorney and inventors is a long one—often more than twenty years. Inventors who are first finding their way are on the younger side. Once they find an attorney they trust, they keep coming back over the years for help with the renewal of patents, new patent filings, and so on.

But time gets the best of us all. All inventors die eventually, and this inevitability has an impact on the patent applications and patents that they own. The death of a patent owner is a significant event.

However, the death of an inventor who has assigned their rights to a company is actually rather insignificant. Business continues as usual. This is why it can be advantageous to set up a patent holding company, especially where licensing or joint inventors are a factor. Alternatively, if there are living co-inventors, they may be able to enter a ‘substitute statement’ which allows them to proceed, without the deceased inventor participating.

But what about when a sole inventor held the rights to their patents and/or applications, and they die? Then it’s a matter of administering their estate.

When a ‘natural person’ dies—versus a ‘legal person,’ such as a business or organization—an ‘estate’ comes into existence. The estate is the legal person or entity that contains all the contractual and property rights and responsibilities that were controlled by the natural person before their death. There are exceptions, but when the owner of a patent dies, the patent usually becomes the property of the estate.

There are three ways an inventor can structure their estate to handle their patents, applications, and other property after their death.

Option 1 – The will directs the natural person’s patents and property to “pour over” from a will into a trust.

In this case, the patent is now owned by a trust, which was formed by a trust document naming a trustee, who is tasked with carrying out the deceased inventor’s wishes as described in the trust document. The attorney who created the trust must produce a letter indicating that:

1. The inventor died.
2. The inventor had a trust.
3. The patent is now owned by the trust.

The trust document must be attached to this letter, as well as the inventor’s death certificate. This collection of documents is sent to a patent attorney—I’ve handled many such arrangements—who in turn files three documents:

1. An assignment letting the USPTO know that the trust now owns the patent.
2. A document which makes note of the USPTO assignment in the file wrapper of the patent or patent application.
3. A power of attorney stating that the patent attorney now represents the trust in matters relating to the deceased inventor’s patents and applications.

Option 2 – The will directs the natural person’s property to another person.

A will designates an executor to accomplish the instructions that the testator provides in the will.  The executor has a list of things to do to resolve the decedent’s estate.  The last thing is to distribute property as the will requires.  In every case I have encountered with patents, the executor is also the beneficiary who ends up getting the patent, but these could theoretically be different people.

Where the executor is the beneficiary who gets the patent, the process is largely the same as with Option 1, except that:

1. The new owner provides a patent attorney with the will (rather than a trust document) and the death certificate.
2. No explanatory letter from a lawyer is necessary, as a trust isn’t involved.

Where the executor and the patent beneficiary are separate people, the executor needs to provide a short letter indicating that the beneficiary gets the patent.

From that point on, the patent attorney follows the same process as with a trust. The difference is that their paperwork instead names the person who now owns the patent, rather than a trust.

Option 3 – There is no will, which complicates things.

In this situation, someone has to step in to become an administrator of the deceased inventor’s estate. This generally involves a spouse or close family member going to court with a death certificate and asking for ‘letters of administration’ (sometimes called ‘letters rogatory’). These documents indicate that the would-be administrator has the authority to manage the decedent’s affairs.

Once this is granted, the administrator can then file an assignment to take ownership of any patents for the interim. Once the estate has been closed, and the patents have been either transferred or sold off, the new owner will then have to file another assignment naming them as the owner.