A widower in Brooklyn leaves behind a $3 million estate. He had three children, but tragically, two predeceased him. The first deceased child left behind one daughter. The second left behind four sons. When the widower passes away, exactly how is that $3 million divided among his surviving child and his five grandchildren?
If you assume the grandchildren all receive an equal share, you might be wrong. If you assume the grandchildren split their respective parents’ shares, you might also be wrong. The financial outcome depends entirely on two Latin words—or the absence of them—in the grandfather’s will.
When I sit down with families to discuss legacy planning, we spend significant time on contingency scenarios. Everyone knows who they want to inherit their assets if all goes perfectly. An estate plan, however, must function flawlessly when life goes terribly wrong. Deciding exactly how assets flow down generational lines requires understanding the difference between a per stirpes distribution and what New York law defines as taking by representation.
The Traditional Approach: Per Stirpes
The term per stirpes translates from Latin to “by the roots.” In estate law, it means a deceased beneficiary’s share drops straight down the family tree to their direct descendants.
Let’s revisit our Brooklyn family. If the will specifies the estate is distributed “to my descendants, per stirpes,” the math is strictly fractional based on the three original branches of the family.
Under this method, the surviving child receives their original one-third share of $1 million. The only daughter of the first deceased child inherits her parent’s entire one-third share, meaning she also receives $1 million. The four sons of the second deceased child, however, must split their parent’s one-third share. They walk away with $250,000 each.
This creates a sharp financial disparity at the grandchild level. One grandchild inherits a million dollars, while her cousins inherit a quarter of that amount simply because they have more siblings. Many of our clients actively prefer this method. It preserves the exact mathematical share each branch of the family would have received had everyone survived, honoring strict lineage.
The Modern Default: By Representation
What if the widower wanted all his grandchildren treated equally, regardless of which parent they belonged to? This is where taking by representation comes into play.
If your will simply leaves assets to your “issue” or “descendants” without specifying per stirpes, the law makes a binding assumption on your behalf. Under New York’s Estates, Powers and Trusts Law (EPTL) § 2-1.2, any disposition to “issue” in a will drafted after September 1, 1992, automatically passes by representation.
This statutory default changes the math entirely.
First, the estate is still divided at the first generation where there is a survivor. The surviving child takes their one-third share of $1 million. But then, the remaining two-thirds of the estate—the $2 million that would have gone to the deceased children—is pooled together. That single pool is divided equally among all surviving members of the next generation.
Under this rule, the pool is split five ways. Every single grandchild receives exactly $400,000.
Taking by representation ensures beneficiaries of the same generation are treated identically. It eliminates the financial luck of being an only child versus having multiple siblings when inheriting from a grandparent.
A Warning About Pure Per Capita
I frequently review old or do-it-yourself estate documents that use the term per capita without fully understanding the legal consequences. Pure per capita means “by the head.”
If a document simply says “to my descendants, per capita,” it counts every living descendant—children, grandchildren, and potentially infant great-grandchildren—and divides the estate into equal shares for all of them. If our widower had one surviving child and five surviving grandchildren, a pure per capita distribution divides the estate into six equal shares of $500,000. The fifty-year-old surviving child receives the exact same amount as a newborn grandchild.
This is almost never what a testator actually intends. Using legal terminology without grasping the statutory definitions is a fast track to Surrogate’s Court litigation.
Protecting the Generational Transfer
Regardless of whether you choose a per stirpes or by representation distribution, the math is only half the equation. If a grandchild inherits $400,000 under either method, and that grandchild is ten years old, they cannot legally hold the funds.
Without a deliberate trust structure in place, the Surrogate’s Court will appoint a guardian of the property. This often requires joint control with the court clerk, strictly limiting how the funds are used, and mandates that the entire principal be handed over to the child the moment they turn eighteen.
Stewardship.
Proper legacy planning dictates that we build contingencies not just for who receives the money, but how they receive it. A prudent estate plan establishes an age-appropriate trust, naming a reliable trustee bound by strict fiduciary duty to manage the assets until the beneficiary reaches an age of maturity.
Making a Deliberate Choice
There is no universally correct choice between per stirpes and by representation. The right decision depends entirely on your family dynamics, your history of gifting, and your personal philosophy on inherited wealth.
If you view your assets as belonging to distinct family branches, per stirpes keeps those branches financially intact. If you view your grandchildren as a single cohort who should be treated equally, by representation achieves that goal.
Do not leave your generational wealth to the default assumptions of state law or the ambiguity of an outdated document. We invite you to schedule a beneficiary distribution audit at our Madison Avenue office to ensure the mechanics of your estate plan match your actual intentions for your family.
