Estate Planning Issues for Research Scientists
Editor’s Note: We hope you enjoy this first article in our series on estate planning for specific professions and focused on important topics. We welcome your feedback, as well as suggestions for future topics and professions.
Estate planning for scientists who do research should include a consideration of what may be properly disposed of by the scientist during life and at death.
A detailed analysis of what the scientist owns and has the right to assign should be undertaken prior to doing any planning. Ownership and assignability of data, samples, equipment, analyses and IP rights and associated agreements (e.g. patents or agreements for the protection of trade secrets) are a function of the terms under which they were purchased or created and whether and, if so by whom, the scientist is employed.
Many faculty scientists work at research universities with detailed IP policies in place. Those policies may speak to the disposition of valuable IP created by the faculty. Grants to scientists who are faculty members are probably not assignable without permission of the grantor or are assigned to the institution with the scientist named as principal investigator. If the scientist remains the grantee, the employer institution may or may not impose constraints on assignment.
Scientists who work for government or private employers probably own none of their data, samples, equipment, analyses or IP created in the process of their work and are not direct funding recipients of grants. They are normally obligated to assign to the employer any patents derived from their work.
Scientists who operate independently and control their production of IP would usually do so via an entity that they own, and that entity would have all rights to data, samples, analyses and other IP created by the scientist or his or her employees. The scientist or the entity would be the recipient of research funding. In that case, the entity is probably transferrable or saleable, although active participation by the scientist as owner or researcher may be a condition of a grant. If the entity was created by a faculty member at the request of an academic institution to work on R&D for private companies, the institution may have an interest in the entity.
Scientists who operate as individuals, independent of any entity, generally can treat their data, samples, equipment, analyses and IP arising out of their research as property that can be transferred as desired during life or at death. However, if they are the recipient of any grant, the terms of the grant would control assignability of the grant or IP created with the grant.
A scientist should do a proper analysis of what he or she owns and create a proper record of what is the scientist’s and what belongs to others. If the scientist owns specimens, scientific models, equipment, manuscripts, notes, drawings, teaching guides and other papers that are tangible personal property, distribution at death can be controlled by a memo outside of a will. The scientist should take the time to write the memo and should discuss the disposition of the tangibles with colleagues who will be the recipients.
Finally, if the scientist stores information electronically and that information is not already accessible to the appropriate people, the scientist should leave a record for those people as to where the information is stored and the associated passwords.