A client came to my Manhattan office with a question that gets to the heart of what a legacy means. He had three adult children. His son, a father of two, had passed away unexpectedly the year before. His two daughters were both living—one with a single child and the other with none. “Russel,” he asked, “I want to be fair to everyone. But what does ‘fair’ even mean here? Does my son’s share go to his children? Or do I divide my estate equally among my living children and all my grandchildren?”
This question is not about money. It’s about family structure, intention, and the stewardship of generational assets. The answer lies in two Latin phrases that appear in countless wills and trusts: per stirpes and per capita. The choice between them can dramatically alter who receives what. Without clear instruction, the law may make the choice for you.
Distribution By the Branch: Understanding Per Stirpes
The traditional approach to inheritance is per stirpes, which translates to “by the root” or “by the branch.” In this model, each branch of the family tree receives an equal share.
Let’s return to my client’s situation. If he leaves his estate to his descendants per stirpes, his estate is first divided into three equal shares—one for each of his children.
- His two living daughters each receive their one-third share directly.
- The one-third share that would have gone to his deceased son does not disappear. It flows down that “branch” of the family to his son’s own children. His two grandchildren would split their father’s one-third share, each receiving one-sixth of the total estate.
This method honors the generational line, treating each child’s family unit as a distinct entity. Many people I work with feel this is the most intuitive and fair approach. It ensures that a branch of the family is not disinherited simply because of a premature death. It reflects a core belief that a child’s share should be preserved for their own heirs.
Distribution By the Head: The Per Capita Approach
The alternative is per capita, which means “by the head.” This method distributes assets equally among all living beneficiaries of the same generation or class. The concept of family branches becomes irrelevant.
If my client chose a per capita distribution for his grandchildren, the outcome would be very different. First, we would identify the class of beneficiaries—in this case, “grandchildren.” My client has three grandchildren in total. Under a per capita distribution, the portion of the estate designated for them would be divided into three equal shares, with each grandchild receiving one-third.
This approach treats every grandchild as an individual, regardless of their parent. The grandchild whose mother is still alive receives the exact same amount as the two grandchildren whose father has passed. Some families prefer this, seeing it as the ultimate form of equality among the younger generation. For others, it can feel like it penalizes the children of a parent who had more offspring. There is no single right answer—only the one that aligns with your specific intent.
New York Law and the Danger of Ambiguity
The choice between these two frameworks is too important to leave to chance. Ambiguity in a will or trust is a direct path to conflict and costly proceedings in Surrogate’s Court. If your documents are not drafted with precision, New York law will step in to interpret your wishes.
Many boilerplate or do-it-yourself wills fail here. They might simply state, “I leave my estate to my issue,” without defining the method of distribution. In such cases, New York’s Estates, Powers and Trusts Law (EPTL) provides a default rule. Under EPTL § 2-1.2, if an instrument directs property to a person’s “issue” without further definition, the property is distributed by representation.
This is a hybrid method. In my client’s case, the estate would be divided into three shares at the child level—one for each living child and one for the deceased child. The deceased child’s share would then pass to his two children. While this outcome resembles per stirpes in this simple scenario, in more complex families it can produce different results. Relying on a default statute is not a substitute for deliberate planning. The purpose of a well-drafted will is to state your intent so clearly that no court has to guess what you meant.
Making an Intentional Choice
Choosing between per stirpes and per capita is a deeply personal decision. It requires you to think through contingencies. What if one of your children has a large family and another has none? What if a child becomes estranged? What if you have a blended family?
Each scenario calls for a prudent, intentional decision. We often walk clients through a diagram of their family tree, mapping out how assets would flow under each method and in various future scenarios. This exercise isn’t about legal technicality; it’s about ensuring the document we prepare is a true reflection of your values and your vision for the family’s future.
Your legacy is more than the assets you leave behind. It is the clarity, care, and foresight you provide for those you love. A few carefully chosen words in a will can prevent a generation of confusion and resentment.
If you are uncertain how your current will or trust handles this critical issue, the logical next step is to have the language reviewed. We can perform a beneficiary designation audit on your existing plan to identify any ambiguity and confirm that your instructions for distribution are legally precise and aligned with your true intent.
