When you create an estate plan in New York, one of the most important decisions you’ll make is how you want your assets and property distributed to your lineal descendants—your children, grandchildren, and great-grandchildren. Two common ways people leave their assets are “per stirpes” or “by representation.” While these terms might sound confusing, the choice between them can have a significant impact on how your legacy is ultimately divided among your heirs.
Our experienced New York estate planning attorneys of Landskind & Ricaforte Law Group, P.C. know how important it is for their clients to understand these two terms and what they mean to their family’s inheritances. Here, they discuss the key differences between distributing assets from an estate through per stirpes and by representation, so you can make an informed decision aligned with your wishes.
The Difference Between Per Stirpes and By Representation
“Per stirpes" and "by representation" are ways to distribute assets to descendants, but they differ in how they handle predeceased beneficiaries. Per stirpes distributes a deceased beneficiary's share equally among their descendants, regardless of their generation. By representation divides the estate equally among all living beneficiaries in the same generation, and if a beneficiary is deceased, their share is then divided among their descendants.
What Is Per Stirpes?
The term per stirpes means “by the root” or “by the branch.” In the context of probate law, per stirpes means that distribution of assets from an estate is through the next branch of the family. Thus, per stirpes is a method of distributing assets where each branch of the family receives an equal share of the estate, regardless of how many people are in that branch.
Under a per stirpes distribution, if one of your beneficiaries dies before you, their share of your estate will pass to their descendants (like children or grandchildren) so that each branch of the family receives the same portion of the total assets.
Here’s an example:
- Charles has three children—Mary, John, and Jim.
- If Charles leaves his estate to his descendants per stirpes, Mary, John, and Jim would each receive one-third of the estate.
- If Mary has two children (Susan and Sara), John has two children (Adam and Claire), and Jim has three children (Dave, Don, and Dana), and Mary predeceases Charles, Mary’s children, Susan and Sara, would inherit Mary’s one-third share. John and Jim each maintain their one-third share.
What’s important to remember is that under per stirpes, the branch of descendants from each of Charles’ children receive an equal share. In this example, each branch receives one-third of the estate. In other words, each branch gets equal money.
What Is By Representation?
By representation is an alternative method where assets are divided equally among living descendants at each generational level. In this new example, John and Jim have predeceased Charles. If Charles leaves his estate to his descendants by representation, it’s divided as follows:
- Mary maintains her one-third share.
- Because John and Jim have predeceased Charles, their two-thirds shares are divided equally by their children.
- So, if John has two children and Jim has three children, that’s five grandchildren that represent the predeceased children. Under by representation, these five grandchildren will split the two-thirds equally or get 1/5 of two-thirds of the estate.
It’s important to know that prior to September 1, 1992, New York law used per stirpes as the default distribution method. However, wills created on or after September 1, 1992, are interpreted as using the "by representation" method unless the will explicitly states otherwise. Therefore, it's critical to understand which method applies to your specific situation, especially when dealing with older wills or when reviewing your estate plan.
Deciding Which Is Better For Your Family
When you’re establishing your estate plan, there’s no one-size-fits-all approach. There’s no “better” choice between per stirpes and by representation. The right approach depends on your unique family dynamics and estate planning goals. Here are some factors to consider:
- Equal treatment of branches. If you want each branch of your family to receive an equal share regardless of the number of descendants, per stirpes may be preferred. This can help prevent situations where one branch of grandchildren receives significantly more than others.
- Equal treatment of grandchildren. If you want all grandchildren to inherit equal shares, regardless of parental status, by representation may be a better fit. This can be especially relevant in blended families.
- Simplicity. In general, per stirpes tends to be simpler to understand and administer, as the division is based on the first generation inheriting. By representation requires more complex calculations at each generational level.
- Family circumstances. Consider factors like the age and maturity of your descendants, their financial situations, and their relationships with each other. If you anticipate conflict or vastly different needs, you may want more granular control than either method provides.
Contact Us for Your Estate Planning Needs
Ultimately, the choice is yours to decide whether to distribute your assets using per stirpes, by representation, or another distribution method. It’s a personal decision based on your distinct family dynamics and values. Husband-and-wife attorneys Terence J. Ricaforte, Esq. and Renata Landskind, Esq. take the time to understand your goals and get to know you personally. We treat our clients with respect and care, and we know how important your estate plan is, as it provides for and protects your loved ones after you’re gone. That’s why you need to work with attorneys you can trust and who will discuss your options clearly and completely. Landskind & Ricafort Law Group, P.C. will listen to your priorities and work with you to create a custom plan that leaves your beneficiaries with an inheritance according to your wishes.
Whether you’re in the planning stages of your estate plan or updating an existing plan, our attorneys will guide you every step of the way. Read our testimonials to see how we’ve helped other New Yorkers make informed decisions about their legacies.