What is the Difference Between Per Stirpes and Per Capita Distribution?

 In Probate, Revocable Trusts, Wills

Traditionally, estates have been passed down by “per stirpes” descent. More recently, this system has been replaced by the “per capita by each generation” system. Only an estate planning attorney can love and understand these terms.

Under the per stirpes approach, which is Latin for “by the roots,” estate assets are passed down by family group. If you have three children, they will each receive a third of your estate. If any of them predeceases you or dies before a trust distribution, his children will receive his share. If two of your children die before you or before the trust distribution, each family group will receive a third of your estate.

The per capita at each generation approach modifies this to some extent. Let’s say your son who dies before a trust distribution had one child and your daughter who also dies before the trust distribution had three children. Under the per stirpes approach, your son’s child would receive a third of the trust assets and your daughter’s children would share a third, each receiving one ninth of the trust distribution. The per capita at each generation approach would treat all of your grandchildren equally, giving them each one sixth of the trust distribution. (Four sixths is the same as two thirds, leaving the remaining third for your surviving child).

Often this distinction is easier to understand through a diagram, such as the one above, than with words. Personally, I feel the per capita approach is more fair, but it’s up to each client to decide what she prefers.


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