The Complexity of the Hereditary Transmission of Intangible Assets

When facing the delicate moment of the loss of a loved one who was also an entrepreneur, an inventor, or a creative, the management of the inheritance takes on particularly complex contours that go far beyond the simple division of real estate or bank liquidity. In the entrepreneurial fabric of Milan, where innovation and brand often constitute the beating heart of a business, the correct transmission of industrial and intellectual property rights represents a crucial challenge. As an expert lawyer in successions, Avv. Marco Bianucci daily observes how the lack of planning or the approximate management of trademarks, patents, and copyrights can dissipate an invaluable heritage, the result of years of work and ingenuity.

Intangible assets, despite lacking physical substance, are often the most valuable assets within the inheritance. A registered trademark, a patent for industrial invention, or the economic exploitation rights of a work of the mind are, in all respects, movable property that enters into succession. However, their peculiar nature requires specific expertise that combines succession law with industrial law. It's not just about understanding 'who gets what,' but about ensuring that the economic value of these rights is not eroded by disputes among heirs or by a decision-making stalemate that, in today's fast-paced market, could spell the end of the asset's commercial utility.

Italian law provides that, upon the death of the owner, the patrimonial rights linked to trademarks and patents are transferred to the heirs. This seemingly automatic transfer hides significant legal pitfalls. Heirs often find themselves in a situation of co-ownership of a patent or trademark, without having the technical skills or entrepreneurial vision to manage it. This is where professional intervention becomes decisive in transforming a potential problem into an ongoing resource.

The Regulatory Framework: Between the Civil Code and the Industrial Property Code

The discipline governing the succession of industrial property rights is a complex interplay between the general provisions of the Civil Code on successions and the special provisions contained in the Industrial Property Code (Legislative Decree 30/2005) and the Copyright Law. A fundamental concept that Avv. Marco Bianucci is keen to clarify to his clients concerns the clear distinction between moral rights and patrimonial rights. Moral rights, such as the right to be recognized as the author of a work or the inventor of a patent, are inalienable and imprescriptible; they can be asserted by heirs posthumously but have no direct economic content. Conversely, economic exploitation rights, which allow for the commercial use of the asset, are freely transferable to heirs.

Specifically, regarding business trademarks, the law establishes that the right to registration and the rights arising from the registration itself are transferable by reason of death. This means that heirs step into the shoes of the deceased, acquiring the faculty to use the trademark, to license it to third parties, or to assign it permanently. However, the situation becomes complicated when there are multiple heirs. In the absence of a will to the contrary, a de facto co-ownership of the trademark is created. According to the rules on co-ownership, ordinary administration decisions can be made by majority, but for extraordinary administrative acts or the assignment of the right, unanimity or qualified majorities are often required, which can lead to paralyzing stalemates.

For patents, the logic is similar. The right to the patent and the rights arising from the industrial invention are transferable. However, patents have a limited duration and require the payment of annual maintenance fees. If the heirs, perhaps in disagreement among themselves or unaware of the deadlines, fail to pay the annual fees to the Italian Patent and Trademark Office (UIBM), the patent lapses, and the invention becomes public domain, nullifying the economic value of the inheritance in that specific sector. From the perspective of an expert lawyer in successions in Milan, prompt legal and administrative action is therefore a non-negligible factor.

Economic Valuation of Intangible Assets in the Inheritance

One of the most critical and often underestimated aspects concerns the correct valuation of trademarks and patents for the purpose of the inheritance tax return and any division of the estate. Unlike real estate, whose cadastral or market value can be determined with relatively standardized parameters, the value of a trademark or patent is extremely volatile and dependent on multiple factors: distinctive strength, market reputation, expected future cash flows, remaining duration of legal protection, and the competitive context.

In his legal assistance work, Avv. Marco Bianucci emphasizes how an incorrect valuation can lead to serious inequities in the division of the estate or tax disputes with the Revenue Agency. If a trademark is undervalued, an heir might receive a share of real value much higher than that of other co-heirs, triggering future actions for reduction due to infringement of legitimate share. Conversely, an overvaluation could result in an undue tax burden in terms of inheritance taxes, where applicable.

Valuation often requires the assistance of sworn technical appraisals that use financial methods (based on future income), market methods (based on comparable transactions), or cost-based methods (how much it would cost to recreate the asset). The role of the lawyer is to coordinate these technical valuations within the overall succession strategy, ensuring that the rights of all heirs, including forced heirs, are respected and that the inheritance tax return is completed in a formally and substantively unassailable manner.

The Approach of Studio Legale Bianucci: Strategy and Value Protection

The approach of Avv. Marco Bianucci, as an expert lawyer in successions in Milan, is distinguished by a vision that integrates the rigorous application of the law with a pragmatic sensitivity to business and family dynamics. When dealing with inheritances of intangible assets, the primary objective of Studio Legale Bianucci is not just the arithmetic division of the estate, but the safeguarding of operational continuity and the economic value of the assets. A trademark contested in court for years loses market appeal; an unused patent becomes obsolete.

The firm's strategy begins with an in-depth analysis of the deceased's intellectual property portfolio. The status of registrations, the presence of active licenses, upcoming deadlines, and any pending litigation are verified. Subsequently, Avv. Bianucci works closely with the heirs to understand their intentions: is there a desire to continue the business activity? Or is it preferred to liquidate the assets? Based on these answers, personalized solutions are developed.

One of the solutions often proposed to avoid fragmentation of rights is the establishment of a special purpose vehicle or a family holding company to which trademarks and patents are transferred, allowing heirs to hold shares in the company rather than undivided shares of individual rights. This facilitates the unified and professional management of the assets. In other cases, division agreements are negotiated that assign intangible assets to the heir who has the skills to manage them, compensating the others with assets of a different nature or cash settlements. Mediation between the parties, conducted with the authority of someone who thoroughly understands the subject matter, is often the key to avoiding long and costly judicial division proceedings.

Frequent Issues: Co-ownership and Decision-Making Stalemate

Co-ownership of an industrial property right is one of the riskiest situations for the asset's value. Imagine three siblings inheriting equal shares of their father's company trademark. One wants to renew the image and invest, another wants to sell the trademark to a competitor, and the third is indifferent but doesn't want to spend money on renewing the registration. In the absence of agreement, the trademark risks lapsing due to non-use or non-renewal.

Avv. Marco Bianucci assists clients precisely in managing these stalemates. Through the preparation of co-ownership regulations or shareholders' agreements (in the case of contribution to a company), clear rules can be established for the administration of the common asset, appointing a common representative if necessary to interface with the Patent and Trademark Office and third-party licensees. Legal intervention serves to unblock decisions, protecting the asset from depreciation caused by inertia.

Furthermore, the firm also offers specific advice in the preceding phase, that of succession planning. For the far-sighted entrepreneur, preparing a will that specifically assigns intellectual property rights or using instruments such as a family pact can prevent litigious co-ownership from arising at the root, ensuring that the company and its intangible assets pass into the hands of those best suited to manage them.

Frequently Asked Questions

How are copyright royalties divided among heirs?

The economic exploitation rights of a work are transmitted to the heirs according to the general rules of intestate or testamentary succession. Usually, co-ownership is created among the heirs, who must jointly decide how to exploit the work (e.g., reprints, adaptations). Moral rights, on the other hand, can be exercised by each heir independently to protect the paternity and integrity of the work.

What happens to a trademark if the owner dies without a will?

In the absence of a will, the trademark falls into intestate succession and is inherited by the closest relatives according to the shares established by the Civil Code (spouse, children, etc.). Co-ownership of the trademark is automatically formed, requiring the consent of the heirs for extraordinary management or assignment, often creating operational difficulties if not managed correctly.

Are inheritance taxes payable on an inherited patent?

Yes, patents and trademarks are assets that are part of the hereditary estate and must be declared in the inheritance tax return. Their value contributes to the taxable base for calculating inheritance taxes, if due, based on the allowances and rates in effect at the time of the opening of the succession.

Can I sell my share of an inheritance of a trademark?

Yes, each co-heir can sell their share of the inheritance or their share of the individual asset (the trademark), but they must respect the right of pre-emption of the other co-heirs (art. 732 of the Italian Civil Code). It is essential to notify the other heirs of the sale proposal to allow them to exercise this right, failing which they may redeem the share from the buyer.

How long does the protection of an inherited patent last?

The death of the owner does not alter the legal duration of the patent. For industrial patents, the duration is 20 years from the filing date of the application, provided that annual maintenance fees are paid. Heirs succeed to the right for the remaining period; if the patent expires or fees are not paid, the right is extinguished.

Protect Your Intangible Assets: Request a Consultation

Managing an inheritance that includes trademarks, patents, or copyrights requires expertise that goes beyond mere bureaucracy. It is necessary to protect the value created over time and ensure that intellectual property rights continue to generate returns for the heirs. If you find yourself having to manage a complex succession or wish to plan for the future of your business assets, entrusting yourself to an expert professional is the most prudent choice.

Avv. Marco Bianucci receives at his office in Milan, at Via Alberto da Giussano 26, to analyze your specific situation with the confidentiality and professionalism that the case requires. Contact the firm today to schedule an initial consultation and define the best strategy for protecting your interests.