B1 and B2 constitute one "branch" of the family, and collectively receive a share equal to the shares received by C and D as branches (figure 1). When the heir in the first generation of a branch predeceased the decedent, the share that would have been given to the heir would be distributed among the heir's issue in equal shares. TO DIVIDE the rest and residue of my estate […] in two equal shares and to distribute said shares as follows: (a)           TO GIVE ONE such share to my Sister, VERNA REID, and my Brother, JOHN FREDERICK REID, for their own use absolutely. A per stirpes distribution occurs when the children of the deceased beneficiary stand in the shoes of that deceased beneficiary to receive the share that the deceased beneficiary would have received if he had remained alive. A has three children, B, C, and D. B is already dead, but has left two children (grandchildren of A), B1 and B2. “The ghosts of dissatisfied testators,” a Chancery judge once noted, “Wait on the banks of the Styx for the judges who misconstrued their wills.” As such, the court will take great care to ensure that wills are properly interpreted, even if they are oblique or confusing.
As Verna has a 25% share of the estate and each niece and nephew has 10%, she would receive 2.5 times what each niece and nephew would receive. Verna had three children; John had two. Under a per stirpes distribution, the substituted legatees collectively take the share which their respective deceased ancestor would have taken if he had been living.". Granddaughter: since the son predeceased before he inherited, his will is irrelevant.

The respondents (John’s children), by contrast, argued that options C and D were not reasonable. It's intended to make sure that children inherit in the place of a deceased parent, but over the years there have been many lawsuits surrounding the term, with varying results. I use cookies to track user information to serve targeted advertisements. 3354 (S.C.J. In simplified terms, under a stirpital division, a class of beneficiaries will take the share that their (pre)deceased ancestor would have been entitled to receive if she or he had been living. Illustration: Joe prepares a Last Will and Testament that calls for his 2018 Porsche 944, valued at $100,000, to be sold and distributed among his three children–John, Mark, and Luke. Who gets the 1/4, the granddaughter of the testator or the daughter-in-law? Per stirpes , like per capita , are terms borrowed from Roman law and its successor, the civil law , and are found and described in Justinian's Institutes although the mechanism of a per stirpes distribution was known to the common law (see below). Rather, the terms of the testator's will controls, which left his share to his lineal descendents (e.g. The remainder - B's share - is then divided in the same manner among B's surviving descendants. Email: jkaufman@devrieslitigation.com. 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). Copyright © 2020 The Conservative Income Investor. However, in oral submissions her counsel advocated for option D (which would leave her and her children receiving 80% of the estate). In our case, Mark and John would each receive $33,333.33, while Philip and Thomas would each get $16,666.67. Case study 2. To continue with the above illustration, imagine that Joe had a $100,000 parcel of real estate instead of the Porsche. The same holds true for deeds. If he executes a beneficiary deed that states “Joe grants to John, Mark, and Luke” on the deed, Philip and Thomas will get to split the portion of John’s share. "Per stirpes" is an old-fashioned term frequently used (sometimes misused) by attorneys and rarely fully understood by will makers. Of course, the types of people who read blogs like this likely have detailed estate planning instruments that do not rely upon the default rules of the state for deciding distribution.

All his children would share in his 1/4 of the estate; since he has one child, it goes to her. Per capita indicates that the estate is to be distributed by head - meaning that one share is to be paid to each beneficiary in the class specified who is alive at the date of distribution. All matters of controversy disclaimed to the fullest extent of the law. As such, John’s 25% share passed down to his children.

Lineal Descendants Per Stirpes allows an inheritance to automatically pass to a person’s descendants.