Estate planning documents often use the Latin terms per stirpes and per capita when dealing with the distribution of an estate’s assets. Per capita (literally “by heads”) distribution means that each member of a class takes an equal share. Per stirpes (literally “by stocks or root”) diswilltribution means that distribution takes place by right of representation, meaning that children take the place of a parent that died before you. Under the Kentucky statute, when someone dies intestate (without a will), their descendants receive a per stirpesdistribution.
The following case studies illustrate the meaning of these terms.
Case study 1
Mike, who died recently, had three sons: Peter, Greg and Bobby. Peter and Bobby are alive and have no children. Greg died before Mike and had three children who are alive. Let’s assume Mike’s will left his estate to all his living descendants per capita. There are five living descendants — two children and three grandchildren, so they take one fifth each. If Mike had left his estate to his living descendants per stirpes, Peter and Bobby would receive a third each and Mike’s three children receive a ninth each (equal parts of their father’s one third share).
Case study 2
Carol, who died recently, had had three daughters: Jan, Cindy and Marcia. Jan is alive and has two living children. Cindy, who died before Carol, had one child who is alive. Marcia also died before Carol and had two children who are both alive. Let’s assume Carol left her estate to all her living descendants per capita. There are six living descendants — Jan, her two children, Cindy’s child and Marcia’s two children. They therefore receive one sixth each. If Carol had left her estate to her living descendants per stirpes, Jan would take one third, Cindy’s child would take one third (Cindy’s share) and Marcia’s two children would take one sixth each (half of Marcia’s share each). Jan’s children would not receive a share because their parent is still alive.
If you are thinking about making a will, an experienced Louisville estate planning attorney can explain your options to you and help you prepare a carefully crafted document that complies with your wishes. Call Brightwell Law today to arrange a consultation.
