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Drafting a Will – Per Stirpes v. Per Capita

Posted by Ted Hoppe | Aug 06, 2019 | 0 Comments

When preparing your Will, one of the most important parts will be you plan for distributing your estate – the assets that you own at the time or your death. It's a good idea to have several different options for your estate plan. In other words, you should have a plan for what will happen to your estate if your spouse or other primary beneficiary does not survive you.

It is generally a good idea to have at least one alternate beneficiary and preferably two.  So what might this look like?  Here is an example of what a Bequest in a Simple Will might look like1.

I hereby give, bequeath and devise to my Husband, all of my tangible property, together with the rest, residue and remainder of my estate, if he is living and survives me by a period of thirty (30) days.  If my Husband, predeceases me or if he does not survive me by a period of thirty (30) days, then my tangible property and all the rest, residue and remainder of my estate, real, personal and mixed shall pass to my children who survive me by 30 days.

This example provides one alternate beneficiary – your children. Taking it one step further is where the question of per stirpes v. per capita comes in. In reality, you probably will not run into these terms when you are preparing a new Will. The terms are somewhat old fashioned. However, you might run into them if you are in the position of administering an estate with an older Will.  Also, even though the terms are not often used in Wills today, the strategies that those terms stand for are.

Per stirpes and per capita are two ways of describing how you want your estate assets divided. If you specify per stirpes, then you mean, for example, that your estate goes to your children and if one of your children is deceased and has children (your grandchildren), the deceased child's share goes to the grandchildren.

If you specify per capita, then you mean, for example, that your estate goes to your children and if one of your children is deceased, then your estate passes to the surviving children equally.

The good thing is that you do not need to use these terms. You can just describe in your Will what you want to have happen to your estate. Following up on the example above, the third alternate distribution might look like this.

Option 1

If any of my children do not survive me by thirty (30) days, then I give, bequeath, and devise my tangible property and the rest, residue, and remainder of my estate, real, personal and mixed to the surviving child's children (my grandchildren) equally.

Option 2

If any of my children do not survive me by thirty (30) days, then I give, bequeath, and devise my tangible property and the rest, residue, and remainder of my estate, real, personal and mixed to the surviving children equally.

Of course, there are many other options for distributing your estate as well which you should discuss with your attorney or financial planner.

 
  1. Disclaimer: Information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation. 

About the Author

Ted Hoppe

Hi, my name is Ted Hoppe and I have been an attorney in Pennsylvania for more than 25 years. In my practice, I focus on helping businesses and families with legal issues that affect them. Because I am knowledgeable and experienced on a variety of legal matters, I have built many long-term relatio...

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