By Isabella Campbell
The legal terms employed to designate how a testator wishes to distribute their his or her estate can be incredibly confusing. Most of the time, a will distributes an estate either (1) per stirpes, (2) by representation, or (3) per capita. Employing a designation in your will is important, as it eliminates the need to create new documents or update plans if a beneficiary passes away while you are still living.
Per stirpes is most easily explained as the designation that would distribute an equal share to each “family.” Each individual in the generation closest to the decedent will receive an equal share. The individuals in the generation closest to the decedent are usually the testator’s children. Applying the rules of distribution per stirpes, should the testator’s children predecease the testator, then the testator’s grandchild(ren) would split the parent’s share. Dividing an estate per stirpes can result in grandchildren receiving unequal shares depending on the number of siblings they have. One grandchild may split his or her parent’s share with one sibling, while others may have three siblings to divide the same size share amongst.
By representation will often result in the same distribution as per stirpes. The only instance in which by representation can look different from per stirpes is if the testator is predeceased by all of his or her children. If every individual in the generation closest to the testator predeceased the testator, then every grandchild will receive the exact same sized share. The estate, divided by representation, will give each grandchild an equal share.
Per capita is essentially a “hybrid” between per stirpes and by representation. Like per stirpes, each person in the generation closest to the testator will be given an equal share. But, under the distribution of per capita, an equal share is only received by a child if they survive the testator. Thus, a living child of the testator with two deceased siblings will still receive a 1/3 share. But, unlike per stirpes, grandchildren of the testator do not receive their deceased parents share. Under per capita, a grandchild of the testator without a surviving parent will receive their share “by representation,” meaning they will get the same sized share as any other grandchild receiving a distribution.
Which direction you decide to go is completely up to you and the goals for your legacy. At Legacy Planning and Probate, we urge our clients to plan for tomorrow, today. Be sure to contact us through the website with your questions or start the process.