Per Stirpes with No Surviving Descendants

Discussion in 'Wills & Estate Planning' started by flywire, 5th Jun, 2022.

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  1. flywire

    flywire Member

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    What Is Per Stirpes?
    > Per stirpes is a legal term stipulating that should a beneficiary predecease the testator—the person who has made the will—the beneficiary's share of the inheritance goes to that beneficiary's heirs.

    Query about will leaving the estate to "my spouse [named], per stirpes". If the testator is predeceased by spouse and one of the children without descendants, is the deceased child's benefit extinguished?
     
    flywire, 5th Jun, 2022
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  2. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    Impossible to answer based on that. If the spouse has children they would probably be substituted for them.
     
    Terry_w, 5th Jun, 2022
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  3. flywire

    flywire Member

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    Let's simplify it. In the widely used example Per stipes example, say child D is predeceased. What share does child C get?

    The definition seems to imply there is no benefit with per stirpes if someone is predeceased without descendants.
     
    flywire, 5th Jun, 2022
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  4. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Member

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    it is likely B and C would get 50% each. No benefit for who?
    Testator benefits as the beneficiaries get what he wanted to give them. B and C benefit as their share increases. D doesn't benefit, but they are dead.
     
    Terry_w, 5th Jun, 2022
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  5. Simon Hampel

    Simon Hampel Founder Staff Member

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    My (non-professional) understanding is that, yes - a beneficiary who predeceases the testator and who has no descendants, would not receive any benefit. Why would they?

    If you wanted something else to happen in this situation (for example, their share to go to charity), then you would need to make that explicit in the will.

    Some reading for reference: Per stirpes and per capita distributions in deceased estates -
     
    Simon Hampel, 6th Jun, 2022
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