What is the Difference Between Per Capita, Per Stirpes, and Per Capita with Representation Distributions?

Per stirpes and per capita are commonly used terms in wills, trusts, and intestate distribution statutes to describe how a deceased person’s estate is to be distributed to his or her beneficiaries or heirs. But figuring out what these words mean can get a bit confusing. Below is an explanation of each type of distribution.

Per Stirpes

Per stirpes is the Latin term that literally means “by the roots.” If an estate is distributed per stirpes, each living member of a group of beneficiaries closest to the person making the distribution will receive an equal share of the estate.

However, if one of the beneficiaries predeceases the person making the distribution, that beneficiary’s descendants will take by representation the share of the estate to which their parent would have been entitled.

By way of illustration, let’s assume:

  • Jack had three children, Adam, Bill, and Carl
  • Adam has two children, David and Evan
  • Bill has one child, Frank, and
  • Carl has three children, Grant, Henry and Ian.

In his will, Jack specifies that his estate is to be distributed to his descendants, per stirpes.

If Jack is survived by Adam, Bill, and Carl, each of his children would be entitled to 1/3 of his estate.

However, if Adam predeceases Jack, Bill and Carl will each be entitled to 1/3 of Jack’s estate, and Adam’s share will be divided equally between his children, David and Evan. Jack’s other grandchildren would not be entitled to any portion of the estate.

Per Capita

Per capita is a Latin term that literally means “by the head.” If an estate is distributed per capita, all the living members of an identified group will receive an equal share of the decedent’s estate.

However, if a member of the identified group predeceases the decedent, then his or her share would pass to the other members of the group rather than to his descendants.

Using the same illustration as we did earlier, if Jack’s will specifies that his estate is to be distributed to his children, per capita, and all his children survive him, then the result will remain the same – each of his children would be entitled to 1/3 of Jack’s estate.

However, if Adam predeceases Jack, then Adam’s share would be split between Bill and Carl, with each of them receiving a ½ share. None of the grandchildren would be entitled to any part of the estate.

Per Capita with Representation

Texas’ laws of intestate succession specify that if all the heirs are of the same degree of relationship to the decedent, meaning they are all children, or all grandchildren, then the estate will be distributed per capita.

However, if they are not of the same generation, for example if children and grandchildren survive, then the younger generation will only be entitled to the that portion of the estate that older generation would have received had they survived.

Using our example, if Jack’s will specifies that his estate is to be distributed to his children, per capita with representation, and all his children survive him, then the result will remain the same – each of his children would be entitled to 1/3 of Jack’s estate.

If Adam predeceases Jack, Bill and Carl will each be entitled to 1/3 of Jack’s estate, and Adam’s share will be divided equally between his children, David and Evan. But, if all Jack’s children predecease him, then each of the grandchildren would be entitled to an identical share of Jack’s estate.

In contrast, a strict per stirpes distribution would have required that the grandchildren share what their parents would have been entitled to had they survived. So, in our example, David and Evan would share 1/3, Frank would get 1/3, and Grant, Henry and Ian would share 1/3, meaning that each of the grandchildren would receive a different share of the estate.

Comments

  1. Great illustration, I am using as a teaching tool in a genealogy class, thanks for your help

Leave a Comment

If you would like to add your perspective to this post or have a general question, please leave a comment. However, if you have a fact-specific legal question, please email me, or communicate with me through my secure client area. To do so, simply login if you are an existing client, or request an introductory conference if you are interested in becoming a new client.