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Differences Between Per Capita and Per Stripes

The law of wills and succession is a complex area that governs the distribution of a deceased person's assets among their heirs. Two key principles that play a significant role in this process are per capita and per stirpes. These Latin terms may sound intimidating, but they are crucial for understanding how an estate is distributed among surviving beneficiaries. In this article, we will explore the differences between per capita and per stirpes and their implications in the context of wills and succession.

Per Capita Distribution

Per capita, which translates to "by the head" in Latin, is a distribution method that treats each individual beneficiary equally, regardless of their relationship to the deceased. In the context of wills and succession, this means that each person in the same generation receives an equal share of the estate. If one of the beneficiaries in a generation predeceases the testator (the person making the will), their share is distributed among the surviving beneficiaries in that generation. For example, if a testator has three children and one predeceases them, the estate would be divided equally among the two surviving children, with no consideration for the deceased child's descendants.

Per Stirpes Distribution

On the other hand, per stirpes, meaning "by the roots" in Latin, takes into account the family line or branch of the deceased beneficiary. This method considers the generational representation when distributing the estate. If a beneficiary predeceases the testator, their share is passed down to their descendants. Using the same example as before, if a testator has three children, and one predeceases them leaving two grandchildren, the estate would be divided into equal shares among the three children. However, if a child predeceases and leaves no surviving children, their share is redistributed equally among the surviving siblings and their descendants.

Choosing Between Per Capita and Per Stirpes

The choice between per capita and per stirpes distribution often depends on the testator's intentions and the family dynamics. Testators should carefully consider the family structure, the relationships among beneficiaries, and their preferences for asset distribution. Commonly, per capita distribution is used when the testator wants a straightforward, equal division among the living beneficiaries, without consideration for family branches or lines. On the other hand, per stirpes distribution is preferred when the testator wants to ensure that the descendants of a deceased beneficiary receive a share, preserving the family line and preventing unintended consequences, especially in larger and more complex family structures.

Understanding the differences between per capita and per stirpes is crucial when creating a will or navigating the complexities of succession laws. While both distribution methods aim to achieve fairness, the choice between them can have significant implications for how an estate is distributed among the heirs. Testators should seek legal advice to ensure that their intentions are accurately reflected in their wills, taking into account family relationships and dynamics to avoid any potential disputes or challenges in the future.

Check out our exam-focused Law of Wills and Succession notes.

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