“Per stirpes” is a Latin phrase that means “by roots” or “by branch.” In the estate law context, it is a method of distributing estate assets that allows a beneficiary’s heirs to receive their inheritance if they pass away before the person creating the will.
This concept is best illustrated through an example:
Say Anna has three children: Barry, Charlotte, and David. Barry has two children: Evelyn and Frank. Charlotte has three children: Georgia, Helen, and Isaac. David has no children.
Anna’s will leaves her estate to her children, per stirpes. If all three of the children are still alive, they will each receive 1/3 of the estate. But, if Barry dies before Anna, Charlotte and David will each receive 1/3 of the estate, and Barry’s interest will be split equally between his two children. So, Evelyn and Frank will each receive 1/6 of the estate.
Now say that both Barry and Charlotte predecease Anna. David will still receive 1/3 of the estate, and Evelyn and Frank will still receive 1/6. Charlotte’s three children will divide her interest equally, so Georgia, Helen, and Isaac will receive 1/9 of the estate.
How Many Generations Does Per Stirpes Cover?
Per stirpes covers as many generations as is necessary to distribute the assets.
Let’s return to our example.
Say that both Barry and Frank predecease Anna, and Frank is survived by two children, Jacob and Karen. In this situation, Jacob and Karen, Anna’s great-grandchildren, will split Frank’s interest in the estate, with each of them receiving 1/12 of the estate. And if Karen passes away before Anna, her share will also go to her descendants.
As this example illustrates, with a per stirpes distribution, you continue to travel “down the branch” until you find a living beneficiary to receive the inheritance. Some per stirpes distributions will stop at the first generation, while others may involve grandchildren, great-grandchildren, or even great-great-grandchildren inheriting.
What Happens with Per Stirpes If There Are No Descendants?
If a beneficiary predeceases the will-maker and does not leave any descendants, their share of the inheritance will be split between the surviving beneficiaries.
Going back to our example, say all three children predecease Anna. In all previous scenarios, each “branch” of the family received 1/3 of the estate, which was then split between the living descendants. However, since David died without any children, there is no one to inherit his share. Therefore, Anna and Frank’s “branches” will each receive half of the estate.
Can I Contest Per Stirpes Distributions?
You can contest a will that contains per stirpes distributions if you have legal grounds to do so, but you cannot contest the use of per stirpes distributions in a will just because you do not like the outcome.
Under the Texas Estates Code, an interested party can file a lawsuit to contest the validity of a will within two years of the will being admitted into probate. Some common reasons a will can be contested include:
- Improper execution of the will or lack of formalities
- Undue influence or coercion
- Fraud or forgery
- Lack of testamentary capacity
If you believe that a loved one’s will is invalid or was created or changed under suspicious circumstances, you should discuss your situation with a knowledgeable probate litigation lawyer. An experienced professional will be able to advise you as to whether you have grounds to contest the will or if there is some other course of action you can take.
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RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.