“Per stirpes” and “per capita” are two terms that often appear in estate planning documents like California wills and living trusts. They are confusing and sometimes mistakenly used interchangeably. Here’s what they mean:
Both terms usually apply to a situation where you leave property to a group of people, like your children, some of whom die before you die. As an example, let’s say that you have 5 kids. Four of your kids survive you but one of your kids (Stacy, who has five children of his own) dies before you.
If your California will and living trust leave your property “in equal shares per stirpes to my descendants who survive me”, then your property will be divided into five equal shares. Each surviving child receives a share, and Stacy’s five children each receive one-fifth of his share.
If Stacy died before you but didn’t have children of his own who are alive when you die, then only four shares are created.
Alternatively, you could leave your property “in equal shares per capita to my descendants who survive me.” In this situation, 9 equal shares will be created giving one share for each living descendant. In other words, there is a share for each child of yours and one for each of Stacy’s children. Per capita allocations can give Stacy’s children more than 50% of your property.
Another option would be to leave your property “in equal shares per capita to my children who survive me.” In that case, only four shares are created and no share is created for either Stacy since he didn’t survive you or for his children because they aren’t your children. This language cuts out Stacy and his family entirely and may not be the preferred approach.
Discuss your options with a California estate planning attorney.