Alternate names: By representation, by right of representation Per stirpes is commonly applied in cases of grandchildren. For example, let’s say you’re a parent of three children, and one of them predeceases you. The children of your deceased child—your grandchildren—would inherit a share of your estate in their parent’s place, through the parent’s “branch” of their right to the estate.
How Per Stirpes Works
Whatever bequest a parent—who is your child—would have been entitled to receive from your estate moves to their children if they predecease you. If you have two children, each of them might receive a one-half share of your estate. Your grandchildren will receive nothing—at least while their parents are living. But if one of your children should predecease you, their one-half share would pass in its entirety to their children. If they are the parent of three of your grandchildren, each of those grandchildren would receive one-third of their parent’s one-half share of your estate, or one-sixth in total. Your other child would still receive their one-half share, and your deceased child’s one-half share would be divided equally among their three children. One-half divided by three equals one-sixth of your overall estate, so that’s what each of these three grandchildren would receive.
How “Per Stirpes” Compares to “Per Capita”
Besides per stirpes, another type of distribution method to “per capita.” Per capita translates loosely to “by headcount.” You might see this presented in a will or trust as something like, “I leave XYZ to my then-living descendants, per capita.” Let’s say you have two children and five grandchildren who survive you. In that case, each individual would receive a one-seventh share of your estate in a per capita distribution; that’s because there are seven of them. If one of your children predeceases you, each of the others would receive a one-sixth share because now there are only six of them. Your deceased child’s share effectively returns to your estate; it doesn’t pass to their descendants. The right of representation becomes moot because your grandchildren are already receiving a share.
What Happens If You Die Without a Will?
These terms are not just important in your last will and testament or living trust agreement. If you should die without an estate plan in place, your property will pass to your heirs according to your state’s rules for intestate succession. In other words, your state’s laws would determine who gets what of your property and assets. Your state’s code will provide that your closest living relatives will inherit from you either by a per stirpes distribution system or a per capita distribution system. It varies from state to state. It is a very good reason to create an estate plan if you haven’t already done so, particularly if you’re not in agreement with the way your state will automatically distribute your estate and you have a large family. Your will or living trust agreement effectively supersedes these state laws. If your child predeceases you, your estate will likely pass to more distant relatives, some of whom you might not have wanted to inherit from you. In a worst-case scenario, it’s possible that your estate could “escheat” to the state if you leave no living relatives. It is the case regardless of whether your state defaults to a per capita or per stirpes distribution system. Your estate planning attorney can help you review your options to determine what best meets your needs.
