What Does Per Stirpes Mean Legally?

Legal documents are often filled with highly technical terms, and it’s not uncommon for many Latin phrases to be used. Latin isn’t a commonly spoken or written language today, so it can lead to confusion. One such term is “per stirpes,” often found in discussions of writing a will. It’s an important concept that should be considered part of anyone’s will. Read on to learn more.

What Is Per Stirpes?

“Per stirpes” is a Latin phrase that translates to “by roots” or “by branch.” It’s a term that’s frequently used in wills and retirement accounts. Although the literal translation sounds vague, it refers to how assets in an estate will be handled after the testator (the person who created the will) dies. Specifically, it provides alternatives if someone named as a beneficiary in the will or retirement account dies before the testator.

When a will has a per stirpes clause, and one of the beneficiaries dies before the testator, the will automatically allows the deceased beneficiary’s descendants to receive their share in equal portions. It doesn’t affect the parts of the estate assigned to living beneficiaries, just the portion dedicated to the beneficiary who passed. For example, four people are named beneficiaries, each to receive a quarter of the estate. One of the beneficiaries dies before the testator. That beneficiary has two children. The three living beneficiaries still receive one-quarter of the estate each, and the fourth beneficiary’s children each receive one-eighth of the estate.

What Is the Value of Including Per Stirpes?

Using per stirpes simplifies the will while you’re alive and after you’ve passed by automatically settling what happens if a beneficiary dies before you do. That means less time and money amending a will during your lifetime to name new beneficiaries and less time in probate court determining who should receive the remaining assets if new beneficiaries weren’t named.

Are There Any Situations in Which Per Stirpes Shouldn’t Be Used?

There are several situations where per stirpes may not be the best plan.

• You don’t want your beneficiary’s descendants to receive part of your estate. There are many reasons why this could be the case, but in the end, the critical part is amending your will to ensure they don’t. One way is to name a contingent beneficiary for each primary beneficiary. If by some chance both the primary and contingent beneficiary passes away before the testator, the will would need to be amended again.
• You want your assets to go only to the surviving beneficiaries. This is known as “per capita” distribution. Per capita is a Latin phrase that means “by head.” Just as with per stirpes, per capita needs to be explicitly addressed in the will. When it is, the descendants of the beneficiary who passed away before the testator will not receive that share, but it will be divided among the other living beneficiaries.

There are stepchildren or other relatives by marriage. Only children by birth or legal adoption can be considered the testator’s legal children. If there are stepchildren, they’re not automatically considered descendants and wouldn’t be eligible for a per stirpes inheritance. In these cases, explicitly designating them as contingent beneficiaries is necessary.

Should I Use Per Stirpes if I Think a Family Member Might Try to Contest My Will?

This is a complicated situation that varies from case to case. Working with an experienced estate planning attorney is highly recommended in a situation like this. In general, designating primary and contingent beneficiaries is one way to make it more difficult for someone to contest the will.

Another way to deter someone from contesting the will is to use a no-contest clause (also known as an in terrorem, penalty, or forfeiture clause). This is not available in every state, but Georgia allows it. Adding this to a will effectively prohibits a named beneficiary from contesting a will without forfeiting the right to their share of the estate. This won’t completely prevent someone from challenging a will, but given that their only chance of receiving anything from the estate depends on them winning the challenge, they’ll have to present a solid case to the probate court.

Challenging a will is a difficult process requiring a considerable amount of evidence, so forcing the contester to risk losing their inheritance can be a strong incentive for them to accept the will’s outcomes.

Is It Difficult to Add Per Stirpes to a Will?

Not necessarily, but as with all legal documents, having an attorney with experience drawing up wills is recommended. You can use the specific names of the contingent beneficiaries, or you can simply note that if the primary beneficiary passes away before the testator, their descendants should receive that share, per stirpes.

When there’s any doubt about the legality or validity of how the will is worded and drawn up, seek professional advice.

What Should I Do if I Need Help Drawing Up or Amending a Will to Include Per Stirpes?

Call us at 770-758-6832 to request an in-depth, no-obligation strategy session. Having a thoroughly planned and executed estate can provide peace of mind, knowing that your assets will go to those you wish to have them. It can also make probate a quicker, less expensive process and help prevent family issues after your passing. It may also help to have a knowledgeable estate planning attorney walk you through the pros and cons of using per stirpes to see if it will benefit your will.