A will is a critical estate planning document that allocates your assets and property to your designated chairs and beneficiaries when you pass. If you have never drafted a will, some of the terms may be a little confusing, but an estate planning attorney can help you understand each one. Two terms that come up that our clients often question are the terms per stirpes and per capita.
Understanding the difference between these terms and their legal implications can help you make better-informed choices about your estate plan. If you need legal assistance creating a will, living will, trust, or other estate planning document, contact an estate planning attorney to guide you through the often complicated process of estate planning.
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What Does Per Stirpes Mean in Texas?
Per stirpes is a Latin term meaning “by branch” or “by roots.” Regarding estate planning, per stirpes means distributing assets and property to your beneficiaries and their descendants (even if they aren’t born at the time of your passing). Essentially, when you list an asset or piece of property as going to an heir per stirpes, you state a legal intention for that share of your estate to pass to the descendants of a beneficiary in your will if the beneficiary dies before you do.
For example, you have three children and plan to split your estate into equal thirds. If you stipulate each third as per stirpes, if one of your children predeceases you, their share of the estate will pass to your grandchildren automatically – the child or children of your deceased child. That estate portion can potentially legally “trickle down” for generations.
Indicating per stirpes has several advantages:
- You do not have to update your will if your child predeceases you
- Your assets remain in the family line
- Reduce conflicts among beneficiaries
What Does Per Capita Mean in Texas?
Per capita, in Latin, means “by head.” As used in estate planning, per capita does not allow the passing down of a share of your estate from your heirs to their children. Instead, if one child predeceases you, their share of the estate is redistributed to your surviving children. Unless you specifically name the deceased child’s children in your will, they will not inherit from you or their parent’s intended share of the estate.
Using our example above, if one of your three children predeceases you, and your will is constructed with per capita, then your two living children will each inherit half of your estate when you die instead of a third.
Per capita will designations also have benefits, such as:
- You may name specific individuals to inherit your estate
- Surviving beneficiaries receive equal shares of your estate
Your heirs may not receive anything unless you specifically state an allocation of your estate for them.
Will a Per Capita or Per Stirpes Designation Affect Probate?
Probate is the process by which a person’s assets and property are allocated after death. Probate oversees the legal transfer of assets and the payment of any creditors to the estate. Probate courts ensure that the executor of the will adheres to the direction of the will and makes sound decisions on behalf of the estate, including distributing assets as per the directions of the will.
Probate oversees the direction of the will, so whether your assets are allocated per capita or stirpes, the only effect probate will have is ensuring that your assets are correctly divided.
Do You Need Estate Planning or Administration Services in Dallas-Fort Worth?
Estate planning can be a very complicated and emotional process, especially when deciding what your heirs will receive. Don’t try to navigate this complicated process alone. Consult with an experienced Dallas estate planning and administration lawyer today.
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