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Wills • Intestate Succession
WILLS#045
Legal Definition
The portion passing to each issue depends on how many issue there are in particular degrees. If the issue are all of equal degree of kinship to the decedent (i.e. same generation), they all take equally. If the issue are of unequal degrees of kinship to the decedent, the estate is divided by right of representation as of the nearest generation in which there are living descendants of the testator: one share for every living member of that generation, and one share for every deceased member of that generation. The share of each deceased member is divided among their living issue.
Plain English Explanation
There are two important concepts to know when dealing with intestate succession: per capita and per stirpes. "Per Capita" is Latin for "by heads," and "Per Stirpes" is Latin for "by branch." These are helpful to keep in mind as we dive into how each works.
Before we begin, let's set up a fact pattern we can reuse for each situation: Bob has 3 children (C1, C2, and C3). C1 has 2 children, and C2 has 1 child. The day before Bob dies, C1 and C2 are killed in a car accident.
Under per capita distribution, the amount each generation receives will vary based on how many living heads (people) are in their same generation. Here, at the starting generation, you have 1 out of 3 children living, so C3 gets 1/3 of the estate. This leaves 2/3 of the estate. How do we divide this? Well, we go to the next generation and count heads. There are 3 living grand children. This means we take the remaining estate (2/3) and divide it by 3, so each grandchild gets an equal share of 2/9.
In contrast, under per stirpes distribution, the amount each generation receives is based on how many starting branches there were, with each successive branch only sharing what the branch above it received. Here, C3 would receive their 1/3 of Bob's estate. C1's would have received 1/3 as well, but since they are dead, their 1/3 passes to their 2 children who split it equally between them. Similarly, C2's 1/3 passes to their single child.
So what's the result? Under per capita distribution, C3 gets 1/3, and each grand child gets 2/9. Under per stirpes distribution, C3 gets 1/3, C2's child gets 1/3, and each of C1's children get 1/6.
If this seems difficult, have no fear, slide over to the visuals for an illustration.
Before we begin, let's set up a fact pattern we can reuse for each situation: Bob has 3 children (C1, C2, and C3). C1 has 2 children, and C2 has 1 child. The day before Bob dies, C1 and C2 are killed in a car accident.
Under per capita distribution, the amount each generation receives will vary based on how many living heads (people) are in their same generation. Here, at the starting generation, you have 1 out of 3 children living, so C3 gets 1/3 of the estate. This leaves 2/3 of the estate. How do we divide this? Well, we go to the next generation and count heads. There are 3 living grand children. This means we take the remaining estate (2/3) and divide it by 3, so each grandchild gets an equal share of 2/9.
In contrast, under per stirpes distribution, the amount each generation receives is based on how many starting branches there were, with each successive branch only sharing what the branch above it received. Here, C3 would receive their 1/3 of Bob's estate. C1's would have received 1/3 as well, but since they are dead, their 1/3 passes to their 2 children who split it equally between them. Similarly, C2's 1/3 passes to their single child.
So what's the result? Under per capita distribution, C3 gets 1/3, and each grand child gets 2/9. Under per stirpes distribution, C3 gets 1/3, C2's child gets 1/3, and each of C1's children get 1/6.
If this seems difficult, have no fear, slide over to the visuals for an illustration.
Hypothetical
Hypo 1: Sam has three children: Alex, Jordan, and Casey. Unfortunately, Jordan passed away, leaving two children, Max and Sara. When Sam dies without a will, his estate needs to be divided. Result: The estate is divided into three equal parts. Alex gets one third, Casey gets one third, and Jordan's third is split between her children, Max and Sara, who each receive one sixth of the entire estate.
Hypo 2: Sam, who is childless, leaves behind a sister, Ella, and two nephews (children of his deceased brother). Result: The estate is divided into two equal parts. Ella, as the surviving sibling, receives one half, and the other half is equally divided between Sam's two nephews. Each nephew gets one fourth of the estate.
Hypo 3: Sam has two children, Alex and Jordan. Jordan has three children. When Sam passes away, both Alex and Jordan are deceased. Result: The estate is divided equally between Alex's and Jordan's branches of the family. Alex's share goes entirely to his next of kin, while Jordan's share is divided equally among her three children.
Hypo 2: Sam, who is childless, leaves behind a sister, Ella, and two nephews (children of his deceased brother). Result: The estate is divided into two equal parts. Ella, as the surviving sibling, receives one half, and the other half is equally divided between Sam's two nephews. Each nephew gets one fourth of the estate.
Hypo 3: Sam has two children, Alex and Jordan. Jordan has three children. When Sam passes away, both Alex and Jordan are deceased. Result: The estate is divided equally between Alex's and Jordan's branches of the family. Alex's share goes entirely to his next of kin, while Jordan's share is divided equally among her three children.
Visual Aids
Related Concepts
How is property distributed where a decedent has no surviving spouse?
In California, what is the result of a pretermitted spouse?
In California, what is the result of intestate succession for a surviving spouse?
What is an advancement?
What is intestate succession?
What is per stirpes?
What is the result of a pretermitted child?
