Per Stirpes or Per Capita: Which is right for you?

Sometimes we like to add a little Latin to a legal document. Good examples are “per stirpes” or “per capita” that are stated after the name of a person or group of people, such as to my children, per stirpes or to my children, per capita. These words are shorthand ways to define how would pass assets at the time of death. One little word make a big difference, so which one is right for you?

Per stirpes means by representation or by right of representation while per capita means according to the numbers. These concepts are better explained with examples:

Assume Fred is single and has two children, one boy and one girl. His son, Bill, has three children, and his daughter, Sally, has two children. Fred decides to leave his assets to his two children, per stirpes.  This would mean that each child would receive one-half of Fred’s assets at death. If his son, Bill, predeceases Fred, then Bill’s children would take Bill’s one-half of Fred’s estate equally (each of Bill’s children would receive one-sixth of the estate).

Let’s instead assume that Fred wishes to leave his assets to his children, per capita. This would mean that each child would receivce one-half of Fred’s assets at death. If his Bill, predeceases Fred, ALL of Fred’s assets would pass to his daughter, Sally. In other words, Bill’s family would receive nothing.

It might be easy to say I will choose “per capita” because I have young children and no grandchildren. When my children grow up and have families of their own, I will change my Will. That’s fine, but we find in our practice that clients do not want to talk about their estate plans very often. In fact, we review plans that are fifteen or twenty years old on a regular basis. So, if you are inclined to think down the road when you might have grandchildren, maybe “per stirpes” makes sense.  If your children predecease you without children of their own, your assets will pass to your surviving children.

Have you thought about your funeral lately?

That’s probably an odd thing to think about, right? While it’s your funeral, you won’t be there, so what does it matter? Although thoughts of funerals should not be relegated to our older clients, we find that many of our older clients want to plan their funerals, or at least give their loved ones some thoughts on what they would like to have for their funerals.

This topic, in fact, reminds me of a client who died a few years ago. He asked that I tell no one of his death or the location of his final resting place. I assured him that I would not tell anyone nor could I under my ethics rules. He also told me that he made a list of individuals who he wanted notified of his death and a list of individuals who were not to be called. He had no interest in a funeral, but had paid for his burial plot and related matters.

This gentleman’s story is not unique in that he had certain wishes that mattered to him. He took the time to write those down so that his personal representative could carry them out.

I have come to realize that planning for a funeral is really another example of a loving gift for your family. Most of us do not want to think about all of the details that go into a funeral – the service, music, flowers, casket, burial or cremation, etc. If you provide your wishes, your family won’t struggle to figure out what to do. And they won’t wonder if they “did it right” after the fact. Going a step further, you can also prepay for some or all of your funeral. This makes sense for some of our clients, especially those who have no loved ones living nearby.

This whole topic caused me to think that I should offer my clients a short workbook/guide on funerals. I have done that, and if you’d like a funeral guide, please give me a call. I would love to share our guide!


Where will your home pass?

Have you ever wondered who would get your house at your death? I recently talked with a widowed client whose wife died about ten years ago. He wanted us to help him get his wife’s house (their home) into his name. For some reason, when the house was purchased, it was only titled in his wife’s name.

This process should be pretty straightforward. We petition the court to determine that the house was his wife’s homestead so that it can pass to my client. Easy, right? Well, I asked an innocent question (one that needed to be asked) and the result changed drastically. My question was “did your wife have any children?” He said yes, which lead to my next question “are they your children as well?”  He told me that they were not his children, and in fact, he did not know where they were.

Unfortunately, his wife died without a Last Will, which is called dying intestate. Under the Florida Statutes, his wife’s home will pass so that my client will get a life estate interest in the house and the remainder will pass to her children. This is, of course, quite different from what he expected and likely what his wife would have wanted. No doubt that his wife would have wanted and/or expected that their house would have passed solely to her husband at her death.

This rule is premised on the idea that if someone has a home in their individual name, they’d probably leave it to both their spouse and children, specifically if the children were from a different relationship. If that person did not have a Last Will, then the State will make this devise happen by Statute.

How could this have been avoided? Had the decedent either (i) titled the home in joint ownership with right of survivorship, or (ii) made a valid Last Will, the house would have passed to her husband. Interestingly, though, if someone dies with a Last Will that leaves his house to his wife, but has minor children, his wife and minor children will “share” the house regardless of the language from the Last Will.

Confused? Don’t worry. We are here to help. If you want certainty in the disposition of your home, and your other assets for that matter, feel free to give me a call. I love this stuff!