Definition - Per Stirpes
If you have a Last Will prepared, you will probably wonder what per stirpes means. The term is from Latin and means literally per branch. What it means is that each branch of a Decedent’s family takes an equal share, regardless of the number of family members in each branch. This term simply tells us attorneys how to divide up an interest in your estate in case the person you named as a beneficiary died before you, leaving surviving children.
The term is best defined by an example. Suppose that a person (lets call him T) dies, having had three children during his lifetime. Let’s call the children A, B, & C. Now, suppose that A and B died before T, and A left two children (A1 and A2), and B left three children (B1, B2 and B3) So, what does everybody get under a per stirpes distribution?
Under per stirpes distribution, C takes one third, A1 and A2 take one sixth each, and B1, B2, and B3 take one ninth each. The defining feature of per stirpes distribution is that even though A1, A2, B1, B2, and B3 are all of the same degree of relationship to T, the children of B each get less than the children of A. This is because the two children of A share one third, but the three children of B also share one third. Some might think this isn’t fair. Others would disagree. Depending on your perspective, this situation can be easily dealt with.
Come back next time where I will show you how to make the distribution to the children of A and B equal. In the process, you will learn your next term: by representation.
December 17th, 2009 at 12:41 am
In New York, today, can you direct to have a per stirpes distribution of your property in your will?
In New York, today, if you say nothing about how you want your property distributed, is it by default by representation?
Thank you.
Allison
December 17th, 2009 at 5:59 pm
Yes, you can have a per stirpes distribution in a Will. The language to do this is as follows: To A, B, and C, in shares per stirpes; or to my issue, in shares per stirpes.
The current default distribution rule in New York is by representation.
EPTL 2-1.2 provides that in any trust or Last Will executed after August 31, 1992 where property is left to “issue” without any qualifying language (per stirpes, per capita, or by representation), the default is by representation.
EPTL 2-1.2 also provides that any trust or Last Will executed prior to September 1, 1992, the default rules are per capita if the issue are in equal degree of consanguinity, or per stirpes if the issue are in unequal degree of consanguinity. Thus, it is the date that the Last Will or trust was executed that determines what the default rule will be.
EPTL 4-1.1 provides that after August 31, 1992 property passing under intestacy passes to issue by representation.