Two Obscure Words that Can Make or Break Your Estate Plan

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Two Obscure Words that Can Make or Break Your Estate Plan

You just want to leave everything to your children in your will.  Sounds simple, right?  

Probably not. 

Consider our hypothetical client, Jane. She has 3 children. Each of them have kids of their own. Now consider: What happens if one of her children pass away before her? What happens to that child’s share of Jane’s estate. Does her deceased child’s children inherit that child’s share?  If so, how much does each child get? Should all the grandchildren receive the same amount? Or an amount each to their parent’s share of Jane’s estate? 

It can feel overwhelming. But we can help.

As lawyers, it is our job to think of these worst case scenarios and to plan for them.  That’s what we do.  

This is where two obscure terms — Per Capita and Per Stirpes —  make all the difference in your estate plan.  

Per Capita at Each Generation

Per Capita means “by the heads.” So, each generation that inherits money receives the same amount. This means each grandchild who inherits receives the same amount as every other grandchild who inherits.  Keep in mind, in this scenario, a grandchild only inherits if their parent has passed away.  

Per Stirpes

Per Stirpes means “by branch.”  So, each of the client’s children inherit the same amount.  If one of the children has passed away, their kids will split their share of the inheritance equally.  This means that grandchildren may receive different amounts of money depending on whether they have siblings.   

An Illustration: Per Stirpes v. Per Capita

Whether you designate your assets to pass to your children per stirpes or per capita at each generation can result in different distribution outcomes.  

Using Jane’s family as an example: Assume Jane has $900,000 at the time of her death.  All three of her children are living.  Jane can make a per stirpes or per capita distribution in her will, and each of her three children will receive 1/3 of her estate, in this case $300,000.

If two of Jane’s children pass away before she does (Child B and C), and her will provides for a per stirpes distribution, the outcome would be as follows:

  • Child A would receive $300,000
  • Grandchild 3 would receive $300,000, Child B’s share.
  • Grandchild 4, Grandchild 5 and Grandchild 6 would split Child C’s share and each receive $100,000.

                     

If Jane’s will distributes her assets per capita at each generation, there’s no difference to the distribution if all of her children are alive.

The difference comes into play when Jane’s children predecease her and leave children of their own.  Here, like the above scenario, two of Jane’s children (Child B and C) have passed away. The outcome would be as follows:

  • Child A would receive $300,000
  • Grandchild 3 would receive $150,000
  • Grandchild 4 would receive $150,000 
  • Grandchild 5 would receive $150,000
  • Grandchild 6 would receive $150,000
 

Drafting your will is personal – there is no right or wrong answer to how you want your grandchildren to inherit!  But it’s important to make sure that your wishes are honored. This is where the expertise of an attorney can make or break your estate plan. 

At Bedford Family Lawyer, we strive to make the estate planning process smooth and easy for our clients.  We want to make sure you understand the legalese and its implications, even in unlikely scenarios.  

Click here to schedule a consultation!

Rebecca Neale

Principal Attorney

As an attorney, Rebecca represents people in divorce, custody, and guardianship proceedings. She also advises people about end-of-life decisions and creates estate plans tailored to their needs and goals. Read more about Rebecca’s Experience here.
Bedford Family Law

Bedford, Massachusetts

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When you reach out to Bedford Family Lawyer for a consultation, we will ask, “What is your goal?” We want to know how we can get you from where you are now to where you want to be, and we will show you the different paths to get there. 

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