I once worked with a family from Queens where the matriarch’s will was, on the surface, perfectly simple. She left her estate in equal shares to her “three beloved children.” The will was written in 1995. By the time she passed away two decades later, one of her sons had tragically predeceased her, leaving two children of his own—her grandchildren.
This created a critical question. Should the estate now be split in two, between the two surviving children? Or should it be split in three, with the deceased son’s one-third share passing down to his two children? The answer hinged on two Latin words the original drafter had included almost as an afterthought: per stirpes.
What “Per Stirpes” Means for Your Family
Per stirpes—Latin for “by the branch”—is a method of distributing property that treats each line of a family as a single unit. In the case of the family from Queens, because the will specified a per stirpes distribution, the answer was clear. The estate was divided into three equal shares.
The two surviving children each received their one-third share. The final one-third, the share that would have gone to their deceased brother, was divided equally between his two children. Each grandchild received one-sixth of the total estate. This approach honors the deceased parent’s place in the family line.
The alternative is a per capita distribution, meaning “by the head.” If the will had specified this instead, the outcome would have been starkly different. The estate would have been divided equally among all living heads—her two surviving children and her two grandchildren would have each received an equal one-fourth share. Neither method is right or wrong. They simply reflect different philosophies of inheritance.
New York Law and Your Intentions
Being deliberate in your will or trust is critical. If you do not state your intentions, New York law imposes its own. New York’s Estates, Powers and Trusts Law (EPTL) § 2-1.2 dictates how property is distributed when a will leaves assets to a person’s “issue” without specifying the method. The statute defaults to a system called “by representation,” which functions very similarly to per stirpes for most common family structures.
But relying on a legal default is never a prudent strategy. The purpose of a well-drafted estate plan is to remove ambiguity, not to invite a court’s interpretation. When we draft a will, we do not leave these foundational decisions to chance. We discuss the implications of both per stirpes and per capita distributions. Does the client want to treat each of their children’s family lines as a distinct unit? Or do they want to treat all their grandchildren equally, regardless of which child is their parent?
The language you choose is a powerful expression of your legacy. It determines whether your daughter with three children and your son with one child are treated as two equal family branches, or whether their children—your grandchildren—are all treated as equal individuals. This is a deeply personal decision, not a legal technicality.
Stewardship Through Clarity
Failing to specify your wishes on this point can lead to confusion and, in the worst cases, conflict among your heirs. Imagine the grandchildren from our Queens family. Under per stirpes, they shared one-third of the estate. Under a per capita distribution, they would have collectively received half. That’s a significant difference, one that could easily cause resentment if the family believed the outcome did not reflect their grandmother’s true wishes.
The role of an estate planning attorney is not just to draft documents—it’s to anticipate these contingencies. Our work is to ask the difficult “what if” questions. What happens if a child passes away before you do? If a beneficiary is a minor? If a marriage ends in divorce?
A will or trust is more than a list of assets and beneficiaries. It is the primary tool of stewardship for the assets you’ve spent a lifetime building. Ensuring the distribution method aligns with your values is a fundamental part of that process. It provides clarity for your trustee, guidance for your family, and a final, definitive statement of your intentions, minimizing the potential for disputes in Surrogate’s Court.
If your will is more than five years old or your family has changed since it was drafted, your distribution plan may no longer reflect your wishes. The first step is to locate your will and read the section that outlines how your estate will be divided. If you are unsure what the language means for your heirs, we can schedule a review of your existing documents to confirm your intentions are legally and clearly stated.
