Posted on 03/06/2017 at 12:00 AM by David Repp
Sometimes, when the business of law is slow, attorneys will spar with each other on social media. This happened this morning on the Iowa State Bar Association List serve. This question was posed by an attorney in Des Moines:
I'd like to know how many of my colleagues still us "per stirpes" in will drafts, and to those who do not, what language do you use in its place? I find that "per stirpes" distribution is normally favored by my clients but they struggle with me using a Latin phrase that must be explained to them. Thank you for any input you may have for me on this topic.
The term “per stirpes” is a Latin term that means “by representation” or “by branch,” and it has specific meaning in estate planning. If I were to say, I give my asset to my descendants, per stirpes, I would essentially be saying that each branch of my descendants get an equal share. Thus, if I had three children, one of whom predeceased me with two living children (my grandchildren), the two children of the deceased child would split one-third of my assets. Lawyers find that it is much easier to say “descendants, per stirpes” than to try and describe who gets what under which circumstances.
Some attorneys, but not many, like to use the term “to my children, per stirpes.” The problem with this is that it is very technically, incorrect. The gift or devise in this case is to the children and no one else. If one child predeceases the testator (the one who writes the will), then the other surviving children’s share is increased leaving the grandchildren with nothing. This is very different than saying “to my descendants, per stirpes,” because the class gift is to the descendants and the modifier “per stirpes” describes who and in what amounts the descendants will get.
So, attorneys should use the term “per stirpes” only in the context of descendants and not go rogue by using “children, per stirpes” or “siblings, per stirpes.”
Also, it is a good idea to use a proper definition of “per stirpes” because the term varies in different jurisdictions. There is "strict per stirpes," "classic per stirpes," or "English per stirpes;" and a strain known as: "modern per stirpes," "modified per stirpes," or "American per stirpes." In re Estate of Evans, 20 Neb .App. 602, 827 N.W.2d 315 (Neb. App. 2013). The distinction between modern per stirpes (also known as per capita with representation) and strict per stirpes is that, in the latter system, the estate is divided into shares at the generation nearest the decedent regardless of whether there are living members, whereas in modern per stirpes, the estate is divided into equal shares at the nearest generation with surviving heirs. The distinction between strict per stirpes and modern per stirpes will be most evident in instances where all of the heirs in the closest degree of kinship are deceased. The point of this discussion is that a good definition of per stirpes should be included in wills and trusts. Here is an example offered by Professor Sheldon Kurtz from the University of Iowa Law School:
When under any provision of this Will the principal of any trust created hereunder or my residuary estate becomes distributable “per stirpes” to the descendants of any designated person or persons, the principal of such trust, or my residuary estate, as the case may be, shall be divided among and distributed to such descendants as follows: The principal or my residuary estate, as the case may be, shall be divided into as many equal shares as there shall be children of such designated person then living and children of such designated person who shall not then be living but who shall have died leaving issue who shall then be living. No share shall be set aside for any deceased child of such designated person who shall have died leaving no surviving issue.
Following such division, one such share shall then be distributed to each such surviving child and one share shall be distributed among the issue of such deceased child. The issue of any deceased child shall take that sub-share in such share equal to what such issue would have taken therein if such share had been the principal of such trust or my residuary estate, as the case may be, and such deceased child had been such designated person.
For purposes of this provision, the term child or children shall include an adopted child or children.
For questions regarding trust and estate law, please contact David Repp.
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