What is intended in the many wills that contain the ancient term “Per Stirpes”. It directed who gets a designated gift or share of the assets if the person named is not alive when the will-maker dies.
Let’s say you, like me, have seven siblings. All of your siblings were still living at the time your father made his will. However, two of your brothers died before your father passed away, one survived by one child, and the other surviving by three children.
When your father dies, what happens? The children of the deceased siblings might expect that they are entitled to their fathers’ shares of their grandfather’s estate?
What if your father wanted his assets divided equally between his remaining living children. Who’s right?
Nj.com’s recent article entitled “My father died. Who will get the share meant for a dead beneficiary?” says that it really depends on how the will was written by the deceased, who’s also known as the testator.
A will may state, “I give, devise, and bequeath my residuary estate to those of my children who survive me, in equal shares, and the descendants of a deceased child of mine, to take their parent’s share per stirpes.”
Per stirpes is a Latin term that means “By the Root”, meaning that a person inherits by the root that connects them to the deceased person. Saying a gift if to Joe Smith, per stirpes, means that the share of Joe Smith will pass to his children in equal shares. However, if nothing is stated in the will, then every state has its own law that interprets a lapse of a will provision. These are known as “anti-lapse” statutes.
For example, the Kansas anti-lapse statute (K.S.A. 59-615), is operative only when:
- The testator bequeaths or devises property to a beneficiary who’s a member of the class designated by the statute
- The specified beneficiary predeceases the testator and leaves issue who survive the testator and
- The testator doesn’t revoke or change his or her will as to the predeceased beneficiary.
If you are a resident of Arizona, that state’s anti-lapse statute applies, if a beneficiary under your will predeceases you. The anti-lapse statute would apply if the predeceasing beneficiary were your grandparent, a descendant of your grandparent, or your stepchild, who have at least one child who survives you. Therefore, if the anti-lapse statute were to apply, the child who survives you would effectively take your beneficiary’s place, and inherit the gift instead of the beneficiary.
Talk to an experienced estate planning attorney if you have questions about wills and per stirpes designations.
Reference: nj.com (March 25, 2021) “My father died. Who will get the share meant for a dead beneficiary?”
