Per Stirpes vs. Per Capita
"Per stirpes" and "per capita" are two terms that often appear in estate planning documents. What do they mean?
Both terms relate to a situation where you leave property to a group of people, some of whom die before you do. For instance, let's say that you have five children. Four of your children survive you; one of your children (Stanley, who has five children of his own) predeceases you.
PER CAPITA
You could leave your property "in equal shares per capita to my descendants who survive me." In this case, nine equal shares will be created, one for each living descendant (so one for each child of yours, and one for each child of Stanley). That overcompensates Stanley's children for their father's death, doesn't it? More than 50% of your property would pass to that family line.
Another option used in bigger families would be to leave your property "in equal shares per capita to my children who survive me." Here, only four shares are created, and no share is created for Stanley (he didn't survive) or his children (they aren't your children). Doesn't this undercompensate Stanley's children?
PER STIRPES
If you have left your property "in equal shares per stirpes to my descendants who survive me" in your will, then your property will be divided into five equal shares. Each surviving child receives a share, and Stanley's five children each receive one-fifth of his share.
If Stanley predeceased you but didn't have children of his own living at your death, then only four shares are created.
I think the preference of most estate planners is in favor of "per stirpes." "Per capita" is like a bowl of porridge, and can be "too hot" or "too cold." "Per stirpes" may not be "just right," but I think it's closer to what most decedents want to do.
