Per Stirpes vs Per Capita with Representation Forum

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BeeTeeZ

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Per Stirpes vs Per Capita with Representation

Post by BeeTeeZ » Sat Jul 20, 2019 2:47 am

Can someone please explain the difference between these two rules of inheritance? After reading all the Barbri materials on it and looking at countless sources online, I honestly can't tell the difference. I feel like I'm taking crazy pills. Please help.

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cavalier1138

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Re: Per Stirpes vs Per Capita with Representation

Post by cavalier1138 » Sat Jul 20, 2019 8:18 am

Under both models, you always ignore dead descendants without issue. The difference is which generation you divide at (although this may not always be different).

Per stirpes always gets divided at the decedent's children's generation, even if none of them are still alive.

Per capita with representation gets divided at the first generation with at least one surviving member.

If any children are alive at the time of the will, these two models will work out exactly the same way. There's only a difference if none of the decedent's children survive him. If that's the case, then per capita with representation skips that generation and starts dividing once you find a generation with at least one living member.

So imagine a decedent with three kids (A, B & C). A has one kid. B has two kids. C has one kid. If A, B, or C is alive at the time of the decedent's death, then the division happens the same way under per stirpes or per capita with representation. Divide the estate between A, B, and C, and then pass each child's share down to their issue if that child is dead.

But now let's say that all three children predecease the decedent but their issue are all alive. Under per stirpes, you still divide the estate at the children (A, B, and C each get 1/3). So A's 1/3 passes to his one kid. B's 1/3 is split between his two kids (1/6 each). And C's 1/3 passes to his kid. Under per capita with representation, you skip over the children's generation, because they're all dead. The first generation with surviving members is the grandchildren, and the estate is evenly split among them (1/4 to each).

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265489164158

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Re: Per Stirpes vs Per Capita with Representation

Post by 265489164158 » Sat Jul 20, 2019 9:57 am

Cavalier, this is so helpful. I had the identical question and could not figure it out (also studying with Barbri). Thank you!!!

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BeeTeeZ

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Re: Per Stirpes vs Per Capita with Representation

Post by BeeTeeZ » Sat Jul 20, 2019 2:57 pm

cavalier1138 wrote:Under both models, you always ignore dead descendants without issue. The difference is which generation you divide at (although this may not always be different).

Per stirpes always gets divided at the decedent's children's generation, even if none of them are still alive.

Per capita with representation gets divided at the first generation with at least one surviving member.

If any children are alive at the time of the will, these two models will work out exactly the same way. There's only a difference if none of the decedent's children survive him. If that's the case, then per capita with representation skips that generation and starts dividing once you find a generation with at least one living member.

So imagine a decedent with three kids (A, B & C). A has one kid. B has two kids. C has one kid. If A, B, or C is alive at the time of the decedent's death, then the division happens the same way under per stirpes or per capita with representation. Divide the estate between A, B, and C, and then pass each child's share down to their issue if that child is dead.

But now let's say that all three children predecease the decedent but their issue are all alive. Under per stirpes, you still divide the estate at the children (A, B, and C each get 1/3). So A's 1/3 passes to his one kid. B's 1/3 is split between his two kids (1/6 each). And C's 1/3 passes to his kid. Under per capita with representation, you skip over the children's generation, because they're all dead. The first generation with surviving members is the grandchildren, and the estate is evenly split among them (1/4 to each).
OMG you're my hero. Thank you so much!!

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