Per Capita vs. Per Stirpes Texas

Per Stirpes Texas

Per Stirpes And Not Per Capita In TX

Wills are the primary estate planning documents. When you are drafting a Will you may need to include either the per stirpes or the per capita terms in the document. Any person engaging in estate planning is likely to come across those terms. An attorney can give you additional information about per capita vs. per stirpes differences in Texas.

What Does Per Stirpes Mean?

Per Capita Legal Definition

In Latin, per stirpes means “by roots” or “by branch” but when you use it in estate planning it means distributing assets to your beneficiaries and their descendants. A clearer way to define it is that per stirpes distribution allows descendants of your beneficiaries to inherit the share of your estate if the beneficiaries die before you.

For example, if you have two children and you want them to get an equal share of your estate when you die and one child dies before you, leaving behind children of their own, the share of your estate that your deceased child would have received will be divided equally among your deceased child’s children. That share of your estate will keep “trickling down” to future generations if the primary beneficiary dies.

The following are the benefits of per stirpes:

  • You do not have to update or amend your Will when a child is born or when someone dies
  • You also get to keep your assets within the same branch of the family
  • Conflicts or infighting among your beneficiaries are also unlikely to happen

The only downside of this linear approach is that your assets may end up in the hands of an unwanted person. This could be a spendthrift grandchild or great-grandchild and so on.

What Does Per Capita Mean?

What Does Per Stirpes Mean For Beneficiaries

Per Capita vs. Per Stirpes TexasPer capita is also a Latin term that means “by head”. Unlike per stirpes, per capita does not allow a trickle down effect in asset distribution. Instead, if one of your children dies before you, the creator of the Will, your estate will be divided equally to your children that are still alive.  For example, if you have two children called Janet and Jillian, and Janet dies before you die, your estate will instead go to Jillian in full when you die.

Some of the benefits of per capita include:

  • Allows you to state the specific people you want to inherit your estate
  • Beneficiaries that survive you receive an equal share of your estate as inheritance

What this implies is that the heirs of the beneficiary who dies before you may not receive anything at all.

Probate In Texas

What Is The Difference Between Per Stirpes And Per Capita

Your Will has to go through the probate process after you die. During probate, a court oversees the payment of the deceased person’s debts and the distribution of their estate. The executor of the state named in the Will is the person that has to file for probate. A probate court can name an administrator if there is no executor.

The probate process often takes six months to complete if the estate is not large but can go on for a year if someone contests the Will.  Only probate assets have to go through the probate process.