An estate planning client recently called me to say he wanted the words “per stirpes” removed from his will because he “read on the Internet” that these words were old fashioned, confusing and lead to much litigation. In case you come upon the same thing, let me clarify.
Per stirpes is a Latin phrase, so in that sense it is old. It means “by root” or “by branch.” As used in estate planning it is a term used to denote a method used in dividing the estate of a person.
Here is an example. Mary is a widow who has three children: Paul, Peter and Fred. She wants those three children to divide her estate equally among them when she dies. But before Mary dies Fred dies leaving three children: Rosa, Randy and Roger. How should Mary’s estate be divided now? Should Paul, Peter, Rosa, Randy and Roger split it equally among them, each receiving one-fifth?
Mary wants Paul and Peter to still receive their one-third. She wants Rosa, Randy and Roger to divide their father’s one-third among them, thus each receiving one-sixth of Mary’s estate. To achieve that result, we use the term “per stirpes.”
There are some variations in how per stirpes can apply in different situations, so many attorneys include a definition of per stirpes within the definitions section of the wills they draft to help remove any confusion.
In my experience, the term “per stirpes” does not lead to lots of litigation. What leads to litigation is generally the decedent’s failure to communicate to all of his family what his wishes are and how he wants his estate divided. If you are planning your estate or have already done so, be sure to let your family know how your will divides your estate. This is particularly important if you are dividing your estate in an unusual manner.