A valid will identifies the beneficiaries and which assets they’ll receive, as well as when and how exactly the beneficiaries will receive those assets. The person writing the will, the testator, also chooses one or sometimes two executors who ensure the will is carried out as written. The testator may also choose between dividing the estate per stirpes or per capita. There are good reasons for either choice, but each has a very different impact on the division of assets.
Literally translated, the phrase means “from the root.” If assets are divided per stirpes, they are equally distributed to each member of the same level of the family. Children of the decedent are the same level, for example. Per stirpes is sometimes also referred to as “right of representation,” meaning that the descendants of an heir inherit that heir’s share when the heir dies. For example, if a mother, the testator, has two grown children and leaves her estate to them, per stirpes, then each of the two heirs receives half of the estate. Let’s say that Heir A has no children, but Heir B becomes a parent of two children, grandchildren of the testator. If Heir B dies, then Heir A retains 50% of the testator’s estate, and Heir B’s 50% inheritance is divided between the two children, leaving each of the grandchildren with 25% of the testator’s estate.
Per Capita is another option for dividing property and means “by person.” Assets given per capita are divided equally among all heirs on the same level who are living at the time of the testator’s death. If for example the testator from the above example were to leave her assets, per capita, the outcome would be very different. If Heir A had no children, and Heir B had two children, then the mother’s estate would be equally divided among the five heirs on that level. Thus, the two siblings and the two grandchildren would each receive 25% of the estate.
The decision to divide an estate per stirpes or per capita depends on the family’s situation and the testator’s preferences. Estate planning entails many decisions, some quite difficult or complicated. Working with an experienced probate lawyer results in a will that meets the unique needs of the client, an invaluable legacy for the family.
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