A client from Brooklyn once sat in my office with her late mother’s will. It was simple, leaving the entire estate “to my beloved children, in equal shares.” Her mother had three children when she signed it. By the time she passed away, only two were left. The third, my client’s brother, had died years earlier, leaving two young children of his own.
The question for the court was stark: Does the estate get split in half between the two surviving children? Or does it get split three ways, with the deceased brother’s one-third share passing to his children—the matriarch’s grandchildren?
The answer hinged on two Latin phrases that carry immense weight in estate planning: per capita and per stirpes. The choice between them is one of the most consequential decisions a person makes when creating a will or trust, as it directly controls how generational wealth is transferred if a beneficiary dies before you do.
“Per Capita”: A Distribution by the Head
A per capita distribution, or “by the head,” divides assets equally among the living members of a specific group of beneficiaries. In my client’s case, if her mother’s will had specified a per capita distribution to her children, the outcome would be clear. The estate would be divided only among the children living at the time of her death. The two surviving siblings would each inherit 50% of the estate. The children of the deceased brother—her grandchildren—would receive nothing.
This is often an unintended and heartbreaking result. Most people I work with want to provide for the family line of a deceased child. They do not want to inadvertently disinherit their own grandchildren because of the tragic timing of a child’s death. But if the language in the will is interpreted as strictly per capita at the children’s generation, that is exactly what happens. It treats the class of “children” as a closed group, and only those still present can claim a share.
A per capita distribution stops at the named generation. It does not look down to the next generation to see if a deceased beneficiary left behind any descendants who might need that inheritance.
The Alternative: “Per Stirpes” and Generational Stewardship
The more common method of distribution is per stirpes, which means “by the branch” or “by the root.” This approach honors the family line. When a beneficiary predeceases the person making the will, their share is not absorbed by the other beneficiaries. Instead, it flows down to their own descendants.
Let’s return to our Brooklyn family. If their mother’s will had stated the assets should be distributed to her children, per stirpes, the outcome would have been entirely different:
- The estate would still be divided into three primary shares, one for each “branch” of the family.
- The two surviving children would each receive their one-third share.
- The one-third share belonging to the deceased son would pass to his two children. They would split their father’s share, each receiving one-sixth of the total estate.
This method treats each child’s family line as a distinct branch of the family tree. The stewardship of that portion of the legacy passes from one generation to the next. In my experience, this aligns with the intentions of most parents and grandparents. They see their legacy as belonging not just to their immediate children, but to their descendants as a whole.
The Default Rule in New York—And Why You Shouldn’t Rely On It
What happens if a will is ambiguous, like the one that simply said “to my beloved children, in equal shares”? For estates with no will, or where a document uses language like “by representation,” New York provides a default rule.
New York’s Estates, Powers and Trusts Law (EPTL) § 1-2.16 defines distribution “by representation.” It functions similarly to a modern per stirpes system, ensuring that the descendants of a predeceased beneficiary inherit the share their parent would have received. While this default provides a safety net, relying on it is a mistake. Ambiguity in a legal document is an invitation for conflict—and costly litigation in Surrogate’s Court.
A will is not a letter to your family; it is a set of precise legal instructions. The difference between “to my surviving issue, per capita” and “to my descendants, per stirpes” can mean the difference between a smooth transfer of assets and a bitter family dispute. Being deliberate with this language is one of the most important acts of stewardship you can perform.
This is not a detail to leave to chance or a generic template. The structure of your family—blended families, children from different relationships, or strained family dynamics—makes this choice even more critical. It requires a frank discussion about your intentions for every contingency.
If you are reviewing your own estate plan, find the section that describes how your assets will be distributed. If you are not completely certain what would happen if one of your children were to pass away before you, the language is not clear enough. The first step is to have those dispositive provisions reviewed to confirm they precisely match your intentions for the next generation.
