You are here: >> WillsHub-BHS Legal Home >> Articles on Australian succession law >> Meaning of per stirpes and per capita

Per stirpes meaning & per capita in deceased estates

Per stirpes distribution

Per stirpes (Latin, meaning by the stock) and per capita (by the head) are ways in which a person’s estate can be distributed among their descendants. 

They are terms referring to different ways of distributing property among a group or class of people. 

A person’s descendants are often referred to as “issue” in succession and inheritance law. As the term ‘issue’ refers to more family than just ‘children’ this can lead to confusion when interpreting what a will-maker intended.   See this article on using the words “issue” and “children” in wills.

Per stirpes and per capita address the situation where one or more family descendants of a person have predeceased them. Per stirpes means ‘by the stocks, roots or branch” and per capita means ‘by the head’, by each individual person in equal shares.

Per stirpes distribution in a deceased estate

Dividing a deceased estate per stirpes is about distributing it equally among the branches of the person’s family.   It is a feature of this type of distribution that descendants further removed from the will-maker are not entitled to anything ahead of or in competition with closer descendants.   No child is entitled to a share while their parent is still living.

So in the example below grandchildren only become entitled to inherit if their parent has predeceased the will-maker.  With stirpital distribution it is only when there is a deceased ancestor that descendants of a lower degree (further down the branch) become entitled to inherit.

per stirpes, per stirpes distribution, meaning of per stirpes, meaning of per capita, estates, deceased estates, deceased estate distribution, estate distribution, meaning of per capita, per stirpes,
How distributing property to “my children” by the “per stirpes” method operates. Compare to using the “per capita” method.

In this example the will-maker’s two children are entitled to inherit half each.  However Child 1 has predeceased the will-maker so that half-share falls to be divided equally among surviving members of the second generation below, being the two children of Child 1.  These are grandchildren of the will-maker and are entitled to take one quarter each.  Not so their cousins in the other branch of the family.  They are not entitled to anything as  their parent, Child 2 was living and so inherited the other half-share.

Problems with per stirpes distribution

Some feelings of resentment may arise among grandchildren, where some become entitled to inherit due to a deceased ancestor and others don’t.   With smaller or one-child families, it is possible that a great grandchild with both a deceased parent and grandparent may end up with a larger share than that of a great aunt or uncle.

Per capita distribution is based on the total number of descendants who are living when  the will-maker dies, regardless of generation.  All living children, grandchildren or great-grandchildren are potentially members of the group entitled to equal shares.  So in the example below as there are 5 living descendants each would be entitled to one fifth each.  It doesn’t matter that one is a child and the others grandchildren.

Problems with per capita distribution

 

Per capita distribution, meaning of per capita, wills, children, legal meaning, next-of-kin, inheritance, per capita and per stirpes
How distributing property “per capita” works when a child has pre-deceased the will-maker.

It may take considerable time to locate all family members potentially eligible to take resulting in delayed administration of the estate.  Living children of a deceased child are not entitled to inherit their deceased parents’ share.  Another source of contention might arise where children and grandchildren inherit the same amount. A child may resent that a niece or nephew has inherited the same proportion as them.

Intestacy – dying without leaving a will, how is the estate distributed

The statutory rules mostly follow the per stirpes method, per the legislation. 

B Stead
BHS Legal
Updated 10 October 2020

Important notice: This article is intended for general interest and information only. It is not legal advice and nor should it be used as such. Always consult a legal practitioner for specialist advice specific to your needs and circumstances and rely on that.

© BHS Legal

Return to top