Estate planning attorneys in Delaware and around the country have to know a lot of Latin terms, but per stirpes and per capita may be the two that they encounter most often. These legal terms are both used to describe the way a testator’s assets are distributed if one or more of the beneficiaries named in their last will and testament dies before they do.
Per stirpes translated into English is “by branch,” and the phrase refers to the branches of a family tree. When a will states that a testator’s assets should be distributed per stirpes if a beneficiary has died, it means that the bequest should go to the heirs below the beneficiary on the family tree. This normally means the inheritance is distributed among the deceased beneficiary’s children. It should be noted that spouses are not considered when assets are distributed per stirpes because they are not blood relatives on the family tree.
Per capita is a Latin term that means “by the heads,” but it is more commonly translated as “all parties should share alike.” When a deceased beneficiary’s inheritance is distributed per capita, the assets are returned to the estate and divided among the surviving beneficiaries according to the terms of the will. The deceased beneficiary’s heirs receive nothing when assets are distributed per capita. Per stirpes and per capita are both common terms in wills and estates law, and each approach has advantages and disadvantages.
Revising wills to prevent disputes
Contentious disputes between heirs are not uncommon when a beneficiary dies before the testator whether assets are distributed per stirpes or per capita. The best way to prevent disputes that can divide families and drag on for months is to revise the terms of a will whenever a beneficiary passes away.