To view the video version of this article, please click here: kawaylaw.com/videos
There’s a line on my intake sheet that reads like this:
Division: Intestate / Per Stirpes / Per Capita
Naturally, there is some confusion about what this means since most people aren’t entirely sure this line is written in English. At best, they’ve only heard of per stirpes, and even then, they usually don’t know what it means (though they might make a joke about the fact that, when pronounced correctly, it rhymes with an embarrassing disease). Let me unpack this for you.
First, let’s talk about what I’m asking you to decide. This question asks about a very specific situation: if more than one beneficiary dies before you and those deceased beneficiaries all have children, how will your estate be split between those children?
The traditional method is per stirpes (pronounced STUR-pees). The idea behind this method is simple: if a beneficiary dies, that beneficiary’s share is split amongst his/her children. The same rule applies if more than one beneficiary dies: if one deceased beneficiary has one child and another deceased beneficiary has five children, the only child will be getting a much bigger payout than the kids who have to share with their siblings. To put it another way, the children get whatever their parent would have received had the parent lived a bit longer.
A more modern method is called per capita. The people who came up with this method didn’t like the idea of larger family units getting less per person than smaller family units. So in this method, the surviving beneficiaries get their share first, and then the rest of the estate is split evenly between all the deceased beneficiaries’ children. To go back to my previous example, where one deceased beneficiary has one child and the other deceased beneficiary has five children, those six children will all get the same amount under the per capita method.
Have you got all that straight? There’s one more method to throw into the mix, and that’s the intestate method. This is the method enshrined in California’s Probate Code, which governs how an estate will be distributed if a person never bothered to write a will or trust (“intestate” is the term for a person who died without a will). This method is a hybrid between per stirpes and per capita – as long as at least one beneficiary is still alive, the estate is distributed per stirpes. But, if all the named beneficiaries are dead, and the children of those beneficiaries are the only ones inheriting, then those children will all receive an equal share (in per stirpes, it wouldn’t matter if all the beneficiaries predeceased you; the children would still be splitting the share that would have gone to their parent).
So that’s the three distribution methods in a nutshell. But let’s be honest, even I have trouble following all of that without some kind of diagram to keep it all straight. That’s why I created a video that walks you through each method with visuals, so it actually makes sense. My goal is to create a visual resource video page to help you get a better understanding of some legal concepts and faqs. If you still have questions after that, you’re welcome to email me at kaway@kawaylaw.com.
