Understanding Heir Distribution: Per Stirpes, Per Capita, and By Representation

Understanding Heir Distribution: Per Stirpes, Per Capita, and By Representation

The distribution method you choose can dramatically change outcomes. Below are plain-English definitions and two side-by-side comparisons using the same family members—first where all children are deceased, then where at least one child is alive.

Family Members Used in Both Comparisons

Anna is the decedent. Her children are Ben, Claire, and David. Grandchildren:

• Ben’s child: Brian1 grandchild
• Claire’s children: Chris, Carla2 grandchildren
• David’s children: Dana, Drew, Dylan3 grandchildren

Anna
├── Ben
│   └── Brian
├── Claire
│   ├── Chris
│   └── Carla
└── David
    ├── Dana
    ├── Drew
    └── Dylan

Per Stirpes (“by the roots”)

Divide at the child level (one share per child branch). If a child is deceased, that branch’s share passes down and is split among that child’s descendants.

Key idea: Equal branch shares at the child level, regardless of how many people are in each branch.

By Representation (Modern Per Stirpes)

Divide at the nearest generation with at least one living descendant. If no children are alive, drop to grandchildren and split equally at that level.

Key idea: If the child generation has no survivors, skip to the first living generation and divide equally there.

Per Capita at Each Generation

Find the nearest living generation; split equally among those living at that level. Shares of deceased persons at that level are pooled and divided equally among their children (next generation).

Key idea: Equal at each living generation; re-pool for the next generation as needed.

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Comparison A — All Children Deceased

Scenario: Ben, Claire, and David have all predeceased Anna. (Grandchildren: Brian; Chris & Carla; Dana, Drew & Dylan.)

Per Stirpes

Split into 3 equal child branches (Ben, Claire, David). Then divide within each branch.

• Brian → 1/3 (Ben’s branch)
• Chris → 1/6, Carla → 1/6 (split Claire’s 1/3)
• Dana → 1/9, Drew → 1/9, Dylan → 1/9 (split David’s 1/3)

Anna
├── Ben (deceased)
│   └── Brian → 1/3
├── Claire (deceased)
│   ├── Chris → 1/6
│   └── Carla → 1/6
└── David (deceased)
    ├── Dana  → 1/9
    ├── Drew  → 1/9
    └── Dylan → 1/9

By Representation (Modern Per Stirpes)

No children survive, so split at the first living generation (grandchildren) and share equally.

• Brian → 1/6
• Chris → 1/6, Carla → 1/6
• Dana → 1/6, Drew → 1/6, Dylan → 1/6

Anna
├── Ben (deceased)
│   └── Brian → 1/6
├── Claire (deceased)
│   ├── Chris → 1/6
│   └── Carla → 1/6
└── David (deceased)
    ├── Dana  → 1/6
    ├── Drew  → 1/6
    └── Dylan → 1/6

Per Capita at Each Generation

Nearest living generation is the grandchildren; they share equally (same result as Modern Per Stirpes here).

• Brian → 1/6
• Chris → 1/6, Carla → 1/6
• Dana → 1/6, Drew → 1/6, Dylan → 1/6

Anna
├── Ben (deceased)
│   └── Brian → 1/6
├── Claire (deceased)
│   ├── Chris → 1/6
│   └── Carla → 1/6
└── David (deceased)
    ├── Dana  → 1/6
    ├── Drew  → 1/6
    └── Dylan → 1/6

What this shows: With no children alive, Per Stirpes sticks to equal child branches, so grandchildren in bigger branches get smaller shares. Modern Per Stirpes and Per Capita at Each Generation equalize at the first living generation (grandchildren) in this scenario.

Comparison B — At Least One Child Alive

Scenario: Ben is alive. Claire and David are deceased. (Grandchildren unchanged: Brian; Chris & Carla; Dana, Drew & Dylan.)

Per Stirpes

Divide at the child level (Ben, Claire, David). Each branch = 1/3; then split within each deceased branch.

• Ben → 1/3
• Chris → 1/6, Carla → 1/6 (split Claire’s 1/3)
• Dana → 1/9, Drew → 1/9, Dylan → 1/9 (split David’s 1/3)

Anna
├── Ben (alive)   → 1/3
├── Claire (deceased)
│   ├── Chris → 1/6
│   └── Carla → 1/6
└── David (deceased)
    ├── Dana  → 1/9
    ├── Drew  → 1/9
    └── Dylan → 1/9

By Representation (Modern Per Stirpes)

Nearest living generation is the child level, so results match Per Stirpes.

• Ben → 1/3
• Chris → 1/6, Carla → 1/6
• Dana → 1/9, Drew → 1/9, Dylan → 1/9

Anna
├── Ben (alive)   → 1/3
├── Claire (deceased)
│   ├── Chris → 1/6
│   └── Carla → 1/6
└── David (deceased)
    ├── Dana  → 1/9
    ├── Drew  → 1/9
    └── Dylan → 1/9

Per Capita at Each Generation

At the child level, count one living child (Ben) and two deceased children with descendants (Claire, David). Make 3 shares at that level; give one to Ben, then pool the two deceased shares (2/3) and divide equally among all grandchildren of the deceased children (Chris, Carla, Dana, Drew, Dylan).

• Ben → 1/3
• Chris → 2/15, Carla → 2/15
• Dana → 2/15, Drew → 2/15, Dylan → 2/15

Anna
├── Ben (alive)   → 1/3
├── Claire (deceased)
│   ├── Chris → 2/15
│   └── Carla → 2/15
└── David (deceased)
    ├── Dana  → 2/15
    ├── Drew  → 2/15
    └── Dylan → 2/15

What this shows: With a living child, Per Stirpes and Modern Per Stirpes match (equal child branches). Per Capita at Each Generation gives the living child one share and then re-pools the deceased children’s shares for equal division among their grandchildren—so cousins across branches get equal slices of the pooled portion (here, 2/15 each).

Why This Matters

• Fairness & Intent: Choose the method that reflects your values and expectations for your family.
• Conflict Prevention: Clear drafting reduces branch-vs-branch frustration.
• Complex Families: Uneven branch sizes and blended families make the choice especially important.

Disclaimer: This article is for general information only and is not legal advice. Laws vary by state—consult an attorney licensed in your jurisdiction.

California Note: How distributions are interpreted

California has three relevant statutes. Which one applies depends on whether your will or trust names a method (and the words it uses) or is silent.

If the instrument is silent

Intestacy or no method stated

• California uses §240 (often called modern per stirpes / per capita with representation): divide at the nearest living generation, then pass down by representation.

If the instrument says “per stirpes,” “by representation,” or “by right of representation”

For instruments executed on/after Jan 1, 1986

• California treats all three phrases the same under §246: divide into shares at the child level (classic per stirpes). This also applies to pre-1986 instruments absent contrary intent.

If the instrument says “per capita at each generation”

• California applies §247: equal shares to all takers in the nearest living generation; leftover shares are re-pooled and divided equally at the next generation.

If the instrument references §240 directly or is ambiguous

• Under §245, explicit reference to §240 or silence without a contrary intention means use the §240 method.

Tip: If you want California’s per capita at each generation outcome, say so explicitly (e.g., “in the manner provided in Probate Code §247”). If you say “per stirpes / by representation,” California will apply §246 (classic per stirpes).