Natan Shmueli, Esq.
Attorney at Law
3008 Avenue L – Suite 202
Brooklyn, NY 11210
(o.) 347-762-8389
(f.) 347-338-2067
NShmueli@Shmueli-Law.Com
Memo: Per Stirpes vs. Per Capita vs. By Representation
The three primary methods of directing the distribution of assets to one’s heirs in a Will or Trust
are: (1) Per Stirpes; (2) Per Capita; and (3) By Representation. In this post, we will attempt to
understand the differences between these methods.
In general, Per Stirpes means that if a beneficiary dies before the maker of the Will or Trust, the
distribution that was supposed to be received by that beneficiary passes directly to the heirs of
that beneficiary. If the predeceased beneficiary does not have any heirs, then the remaining
beneficiaries divide that share between themselves.
Per Capita means that if a beneficiary dies before the maker of the Will or Trust, the distribution
that was supposed to be received by that beneficiary is instead received by the other Per Capita
beneficiaries, and is not passed on to the heirs of the predeceased beneficiary.
In general, By Representation is similar to Per Stirpes in that if a beneficiary dies before the
maker of the Will or Trust, the distribution that was supposed to be received by that beneficiary
passes to the heirs of that beneficiary, and the beneficiaries divide the share of any predeceased
beneficiaries who did not have any heirs of their own. It differs from Per Stirpes; however, in
that instead of passing directly to the heirs of a predeceased beneficiary, the shares of all
predeceased beneficiaries who have heirs are first combined and then divided equally among the
heirs of all the predeceased beneficiaries. Accordingly, it equalizes the distribution received by
each generation who receives a distribution.
It is useful to use examples to illustrate how these designations are similar and how they differ.
In the example below, a parent has four children. The first child has one child of her own, the
second child has two children of her own, and the third child has three children of her own, and
the fourth child does not have any children of her own, as illustrated below in Figure 1.
Figure 1
Parent
Child 1
GC-1
Child 3
Child 2
GC-2
GC-3
GC-4
GC-5
Child 4
GC-6
Natan Shmueli, Esq.
Attorney at Law
3008 Avenue L – Suite 202
Brooklyn, NY 11210
(o.) 347-762-8389
(f.) 347-338-2067
NShmueli@Shmueli-Law.Com
Suppose Parent dies and leaves his assets to “his then-living heirs.” If all four of his children are
still alive, then regardless of whether the assets are to pass per stirpes, by representation, or per
capita, each of his children will receive a quarter of Parent’s assets, and none of the
grandchildren will receive anything, as illustrated below in Figure 2:
Figure 2
Parent
Child 1 = 1/4
GC-1
Child 3 = 1/4
Child 2 = 1/4
GC-2
GC-3
GC-4
GC-5
Child 4 = 1/4
GC-6
Suppose, however, that Child 2 predeceases Parent. Now the result will be the same if Parent had
directed the assets to pass Per Stirpes or By Representation, but will differ if Parent had directed
the assets to pass to his children Per Capita. If the designation was Per Stirpes or By
Representation, then Child 2’s share will be received and divided by his heirs, as illustrated
below in Figure 3:
Figure 3 – Per Stirpes or By Representation
Parent
Child 1 = 1/4
GC-1
Child 3 = 1/4
Child 2
GC-2 = 1/8
GC-3 = 1/8
GC-4
GC-5
GC-6
Child 4 = 1/4
Natan Shmueli, Esq.
Attorney at Law
3008 Avenue L – Suite 202
Brooklyn, NY 11210
(o.) 347-762-8389
(f.) 347-338-2067
NShmueli@Shmueli-Law.Com
In contrast, if the designation was Per Capita, then Child 1, Child 3, and Child 4 would divide
Child 2’s share, with the result being that Child 1, Child 3, and Child 4 would each receive a
third of Parent’s assets, as illustrated in Figure 4:
Figure 4 – Per Capita
Parent
Child 1 = 1/3
GC-1
Child 3 = 1/3
Child 2
GC-2
GC-3
GC-4
GC-5
Child 4 = 1/3
GC-6
Now suppose that both Child 2 and Child 3 have passed away before Parent. In this
circumstance, the distribution will vary depending on which of the three methods were chosen. If
the method chosen was Per Stirpes, then Child 1 and Child 4 will get their 1/4 share, while the
quarter shares of Child 2 and Child 3 will pass directly down and be divided by their own
respective children, as illustrated in Figure 5:
Figure 5 – Per Stirpes
Parent
Child 1 = 1/4
GC-1
Child 3
Child 2
GC-2 = 1/8
GC-3 = 1/8
GC-4 = 1/12
GC-5 = 1/12
Child 4 = 1/4
GC-6 = 1/12
The result is that the grandchildren from Child 2 and Child 3 receive different distributions. This
would have been equalized had Parent chosen the method of By Representation, in which event
Natan Shmueli, Esq.
Attorney at Law
3008 Avenue L – Suite 202
Brooklyn, NY 11210
(o.) 347-762-8389
(f.) 347-338-2067
NShmueli@Shmueli-Law.Com
the combined shares of Child 2 and Child 3 (1/4 + 1/4 = 1/2) would have been equally divided
between their combined children (1/2 divided by 5 = 1/10), as illustrated in Figure 6:
Figure 6 – By Representation
Parent
Child 1 = 1/4
GC-1
Child 3
Child 2
GC-2 = 1/10
GC-3 = 1/10
GC-4 = 1/10
Child 4 = 1/4
GC-5 = 1/10
GC-6 = 1/10
Had the designation been Per Capita, then Child 1 and Child 4 would each receive half of
Parent’s assets, and none of the grandchildren would have received a distribution, as illustrated
in Figure 7:
Figure 7 – Per Capita
Parent
Child 1 = 1/2
GC-1
Child 3
Child 2
GC-2
GC-3
GC-4
Child 4 = 1/2
GC-5
GC-6
In a final example, let’s examine what would happen if Child 2, Child 3 and Child 4 have passed
away before Parent. Because Child 4 did not have any heirs of his own, his share is divided by
Child 1, Child 2, and Child 3 regardless of the method used, with the result that each would be
entitled to 1/3 of Parent’s assets. The ultimate distribution of the assets; however, will still vary.
Natan Shmueli, Esq.
Attorney at Law
3008 Avenue L – Suite 202
Brooklyn, NY 11210
(o.) 347-762-8389
(f.) 347-338-2067
NShmueli@Shmueli-Law.Com
If Parent directs the assets to be distributed Per Stirpes, then Child 1 will receive a 1/3 of the
assets, and the children of Child 2 and Child 3 will each separately divide 1/3 of the assets, as
illustrated in Figure 8:
Figure 8 – Per Stirpes
Parent
Child 1 = 1/3
GC-1
Child 3
Child 2
GC-2 = 1/6
GC-3 = 1/6
GC-4 = 1/9
GC-5 = 1/9
Child 4
GC-6 = 1/9
If a By Representation method was chosen, then Child 1 would still receive his 1/3 (or 5/15) but
the children of Child 2 and Child 3 would equally divide the combined share (2/3) that their
parents would have received (2/3 divided by 5 = 2/15), as illustrated in Figure 9:
Figure 9 – By Representation
Parent
Child 1 = 1/3 or 5/15
GC-1
GC-2 = 2/15
Child 2
GC-3 = 2/15
Child 3
GC-4 = 2/15
GC-5 = 2/15
Child 4
GC-6 = 2/15
If a Per Capita method had been chosen, then as the sole surviving named beneficiary, Child 1
would take 100% of Parent’s assets, as illustrated in Figure 10:
Natan Shmueli, Esq.
Attorney at Law
3008 Avenue L – Suite 202
Brooklyn, NY 11210
(o.) 347-762-8389
(f.) 347-338-2067
NShmueli@Shmueli-Law.Com
Figure 10 – Per Capita
Parent
Child 1 = 100%
GC-1
GC-2
Child 3
Child 2
GC-3
GC-4
Child 4
GC-5
GC-6
The modern school of thought is that it is fairer for everyone at the same generational level to
receive an equal share. This is reflected in the default rule in New York State, which provides
that assets get distributed to heirs By Representation unless otherwise specified. Accordingly, if
you wish to have your assets distributed Per Stirpes or Per Capita, that method needs to be
specified in your Will or Trust.