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A Note On Latin Terminology In Wills And Trusts

Many people ask me the difference between the terms “per stirpes” and “per capita”.   Both terms are used in Wills and Trusts to describe how property should be distributed when a beneficiary (who also has children) dies before the person making the will.   Per capita is often referred to as “by head”.   With a per capita distribution, the heirs of the same generation will receive the same amount.  In practice, here is how it works:

Assume David leaves his house jointly to his son, Frank, and his daughter, Katherine.   If Katherine predeceased David and had two children, a per capita distribution of David’s estate at his death would mean the house would be divided into three shares – one for Frank, and one for each of Katherine’s children.

In contrast, per stirpes is often referred to by the words “by representation”.  A person who takes assets per stirpes does not inherit in an individual capacity, but as a member of a group.  Hence, and in contrast to the earlier example, if David were to leave his house jointly to his son, Frank, and his daughter, Katherine, and Katherine were to die before David, leaving two children, the per stirpes distribution would mean that upon David’s death, Frank would receive one-half of the property and Katherine’s two children would share the one-half she would have received had she been alive, in equal shares.

I generally do not like to use “per stirpes” or “per capita” in my wills because they are not frequently understood by the willmakers.

If you need any assistance with a will or a trust, please feel free to contact our office at (434) 977-7977.

David ToscanoDavid Toscano practices in the areas of family law, collaborative law, estate planning and real estate. David represents the 57th District (Charlottesville-Albemarle) and is the Democratic Leader in the Virginia House Delegates.

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