Estate Planning Law

Understanding Intestate Succession: What Happens When There Isn’t a Will?

When a person dies without a will, it is called being “intestate.” Their estate will be distributed according to their state’s unique laws of intestacy. These laws control:

  • Details about the order in which heirs will inherit (e.g., children, parents, siblings, etc.)
  • How those shares (such as money and property) will be distributed

Low-cost do-it-yourself (D.I.Y.) willsliving wills, and powers of attorney are possible in some simple cases and can be found on our companion site, Estate law varies from state to state, and estate planning situations can get complicated quickly. You may also want to consult with an estate planning attorney in your area for advice on your individual situation. Keep reading to find out more about intestate succession.

Per Stirpes v. Per Capita Representation: Why it Matters

States typically follow distribution laws that are:

  1. Per stirpes (Latin for “by roots”)
  2. Per capita (Latin for “by the head”)

Your state’s specific rules can be found in your state’s probate code (sometimes, this has a different name). How the estate is distributed determines the actual share that each heir inherits.

Per Stirpes Distribution

In per stirpes, the estate is divided into equal shares for each of your kids. Let’s use the example of an estate having $10,000 to pass on. The person who passed away is called the “decedent,” and is named Jon. Jon had four kids named Robb, Kat, Ed, and Jaime. However, Jaime passed away years ago. This means:

  • The $10,000 is split into four equal shares of $2,500
  • One share is given to each living child of the decedent (Example: Robb, Kat, and Ed are living, so they each get $2,500)
  • The decedent had a child die before them, but one equal share is still “given” to that child. However, it passes directly to their living descendants. (Example: Jon’s child Jaime had three kids. These are Jon’s three grandkids. Each of these three grandkids will split Jaime’s remaining “share” of $2,500. So, the grandchildren each get about $833.)

The first division of the estate always occurs at the level of the decedent’s children (four children in our example.) This happens regardless of whether any of the children survive the decedent.

If this is not the way you want your estate handled, it is important to speak to an estate-planning attorney and have your wishes documented.

Per Capita Distribution

In per capita, the estate divides into equal shares for the nearest generation of descendants that has a member living at the time of the decedent’s death. This means all of a decedent’s kids are equal, and if one child passed away, their living kids are also equal.

Let’s go back to the example above. The decedent, Jon, still has $10,000 in their estate to pass on. This means:

  • The $10,000 is split into six equal shares of $1,666 (three kids and three grandkids)
  • One share of $1,666 is given to each living child of the decedent (Example: Robb, Kat, and Ed each get $1,666)
  • One share of $1,666 is given to each living child of the decedent’s child (Example: since the decedent, Jon, had their child Jaime die before them, Jaime’s three kids get an equal share of $1,666 also).

Per capita means your kids and grandkids could all inherit equal shares of your estate if one of your children passes away before you. So, unlike in a per stirpes system, the initial distribution in per capita depends on the heirs surviving the decedent. Per stirpes will make your children equal when they inherit no matter if they are living or deceased.

If you prefer one approach or the other, or this is not how you want your estate handled in the future, you must speak to an attorney to understand your state’s laws and choose how your property is split.

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