If you have children, its likely that they are listed in your will as beneficiaries. However, in some unfortunate circumstances, a child may die before you do. What happens to that child’s inheritance? Does your child’s spouse inherit? Does it go to your grandchildren?
The answer for some may be found in the legal term: per stirpes. This is a Latin term meaning “by roots,” and it is commonly used in last wills and testaments. Here’s how this term could affect the distribution of your estate if a child, or any other beneficiary, predeceases you.
What Does Per Stirpes Mean in Tennessee When Used in Your Will?
In Tennessee, as elsewhere, the term per stirpes is a phrase that instructs the executor on how to allocate the estate among the descendants. Your descendants, typically your children, are the ones who will most likely benefit from your will at your death. When per stirpes is used as a descriptor and one child dies before you do, that child’s share of the estate is passed down to his or her direct lineal decedents – i.e. children, grandchildren, etc. Under Tennessee law, a per stirpes distribution excludes spouses and applies only to family members that flow down the family tree, such as children.
How Is the Term Used in My Will?
The term per stirpes is a relatively easy tool to ensure your descendants benefit from your will. For example, you could say:
- to my issue (children), per stirpes; or
- to my descendants, per stirpes;
- to my children’s issue, per stirpes.
In the case you do not have children or do not want them to be named in your will, you should not say something like the following in your will:
- to my sisters, per stirpes.
- to my nephews, per stirpes.
The descriptor only works for descendants. So, you could alternatively say:
- to my sisters’ issue, per stirpes.
- to my nephews’ issue, per stirpes.
Here’s an Example of Per Stirpes in Action?
To better understand this term and its impact if used in your will, here are a few examples using the same scenario.
The Scenario
Patricia has four children from two different marriages: Cathy, Charlie, Chase, and Cassie. Patricia has a small estate and leaves all her assets to each child equally, per stirpes. Cathy has two children: Gerry and Gloria. Charlie has two children: Gabby and Greg. Chase and Cassie do not have children.
Example 1
When Patricia dies and all of her four children are alive, each will receive one-fourth of her estate. None of the grandchildren will receive anything.
Example 2
If Patricia dies but is predeceased by Cathy, then Patricia’s three surviving children (Charlie, Chase, and Cassie) receive one-fourth of the estate while Cathy’s two children (Gerry and Gloria) receive one-eighth of the estate, splitting their parent’s (Cathy’s) share.
Example 3
If Patricia dies but is predeceased by Cassie, then Patricia’s three surviving children receive their one-fourth of the estate. Additionally, since Cassie had no children, the three surviving children each receive one-third of Cassie’s interest in the estate.
When drafted properly, the term per stirpes can be used as an easy way to make sure your descendants receive their fair share of your estate.
What is Per Capita Distribution?
Per capita distribution is less common, but is something that can be used in making your will. A per capita distribution is when assets are distributed only among a certain group or class, such as children, grandchildren, or siblings. Let’s take a look at Example 2 above and see how it would work with a per capita distribution. In that example, if Cathy predeceases her mother, then Cathy’s children would not inherit her share. Rather, Cathy’s share would be distributed equally among the three surviving children – Cathy’s siblings. As a practical point, if you wish only your surviving children to inherit, and not your grandkids, consider a per capita distribution instead of a per stirpes distribution.