Skip to Content

We are a Veteran Owned Business, providing 20% discounts for Veterans, First Responders, Elementary and High School teachers. Please contact us to set up a phone or Zoom meeting. Taking care of you and your family, It's What We Do!

Per Stirpes vs. Per Capita Distribution in a Will

Posted on Tue Jul 17, 2018, on Estate Planning

One of the obvious benefits of having a will is you get to name the beneficiaries of your estate.  When I sit down, as an estate planning lawyer St. Peters trusts, to meet people, they almost always have an idea of who is going to be their beneficiaries.

What if an Intended Beneficiary Dies Before You?

However, one thing that they often struggle to decide is how to divide their estate if one or more of their beneficiaries die before they do.

There are two options.  The first is called “per stirpes” distribution.  This means that if a beneficiary predeceases, their share goes to their survivors equally.  The other option is called “per capita” distribution.  This means that if a named beneficiary predeceases their share is then split only between the other name beneficiaries.

Examples: Per Stirpes vs. Per Capita Distribution in a Will.

Let’s look at an example:

Sam and Sally have three children, Samuel, Sarah, and Samantha.  They each create wills that leave everything to the other spouse and then to the children in equal 1/3 shares, per stirpes. Sam passes away and then Sarah passes away five years later.  Five years after that Sally dies. Her will controls the distribution of her estate and because she chose per stirpes distribution, Samuel will get 1/3, Samantha will get 1/3 and Sarah’s two children, will each split Sarah’s 1/3 share and each will get 1/6.

With a per capita distribution scheme, under the same example, Sarah’s 1/3 would be split between her brother Samuel and sister Samantha.  Sarah’s children would, therefore, receive nothing and Samuel and Samantha would each split the estate, ½ each.

You can see how the slightest change in one word (“stirpes” or “capita”) can result in a big change.  Therefore, when I counsel clients I discuss these different options thoroughly and ask about their relationship with grandchildren.  Further, we talk about the health of their children and any potential problems that could develop within the family (which we want to avoid) if one scheme is chosen over the others.

Is One Way “Right?”

There’s not really a right or wrong way to choose which distribution you want in your will or living trust.  Based on my years of practice, I would say per stirpes is the choice of 90% of clients over per capita.  Most people think that’s the fairest way and are concerned about beneficiaries getting more due to someone else’s death.

On the other hand, per capita can be a better choice if we’re worried about distribution to grandchildren going to an unpopular daughter or son-in-law.  That can happen when the distribution is made to the grandchild but taken improperly or used unnecessarily by their mother or father.  That’s something to consider if you find yourself with an in-law that you don’t like.

In the end, careful consideration of all circumstances and preferences has to be examined.  Peace of mind is ultimately the goal with any estate plan.

 


 

Thanks to our friends and contributors from Legacy Law Center for their insight into Per Stirpes vs. Per Capita Distribution in a Will.

Peter KlenkPeter Klenk

What Our clients are saying

Klenk Law Logo
Stars

Brian M.

Peter explained a complex subject very clearly, helped us to decide the best approach to managing our estate and then made it very easy for us to execute the required documents. He will be a valuable resource for years to come and clearly has a great understanding of estate law that will lead to innovative solutions for us. I would unhesitatingly recommend him for estate planning.

Klenk Law Logo
Stars

Sharon S.

I contacted Peter through his website using the free consultation link for a question regarding a will. While I was expecting only a few minutes, it was a lengthy conversation. He made sure he understood the situation by asking many questions before offering advice. He then went through my options and results of each one. He left it up to me to decide if I wanted to proceed and did not push me toward one or another. His website has very useful information which I definitely researched before I called him. While I decided not to proceed at this time, I feel I had enough information to make that decision. I would not hesitate to hire him should I need to in the future.

Klenk Law Logo
Stars

Tom Mettinger Sr.

Integrity, exceeding the client's expectations. In-depth knowledge of the law

Klenk Law Logo
Stars

Stephen T.

Peter and his staff handled all of our needs in a very professional and timely matter.

Klenk Law Logo
Stars

Peter G.

Very knowledgeable! Peter Klenk always has a thorough answer, and the associates have more experience than you'll find at most firms. They really only do estate work.

Let us put our expertise to work for you.

Free consultation within 24 hours.