If you’ve ever sat down to look at a draft of a Will or a Trust, you’ve probably felt like you were reading a different language. Between the "heretofore"s and the "witnesseth"s, there are a few Latin phrases that usually make people stop and scratch their heads. One of the most common: and most important: is per stirpes.
It sounds like a complicated medical condition, doesn't it? But in reality, per stirpes is a simple concept that determines how your hard-earned assets travel down through your family tree if one of your children passes away before you do.
In our office, we believe that you shouldn't need a law degree to understand your own estate plan. So, let’s pull back the curtain and talk about what this phrase actually means for you and your family here in Virginia.
The Simple Definition: "By the Branch"
At its core, per stirpes (pronounced "per-STUR-peez") is Latin for "by the branch" or "by the stocks."
Think of your family as a tree. You are the trunk. Your children are the main branches. If you leave your estate to your children per stirpes, you are telling the law that you want your assets to flow down those specific branches.
If all your children are alive when you pass away, they each get their equal share. But if one of those "branches" (one of your children) breaks: meaning they pass away before you: their share doesn’t just disappear or get absorbed by the other branches. Instead, it continues down that specific branch to their own children (your grandchildren).
Why Per Stirpes Matters in Virginia
In Virginia, the way your property is distributed if you don't have a specific plan is governed by Code of Virginia § 64.2-202. This statute essentially sets the "default" rules for what happens when someone dies without a Will (intestate).
However, when we sit down to create your estate planning basics, we don’t rely on defaults. We want to be intentional.
Without the per stirpes designation, things can get messy. If you simply say "I leave everything to my children" and one child passes away, the law might interpret that as "only the children who are still alive get the money." This could unintentionally disinherit your grandchildren from the deceased child's side of the family. Most of the families we work with in Front Royal, Winchester, and throughout Northern Virginia want to ensure that every branch of their family is taken care of equally.
Per Stirpes vs. Per Capita: The Big Difference
To really understand per stirpes, it helps to look at its alternative: per capita.
Per capita means "by the head." If you leave your estate to your "descendants, per capita," you are saying that every living person in the next generations gets an equal slice of the pie, regardless of which branch they belong to.
Let’s look at a real-world example:
Imagine "Grandma Mary" has three children: Alice, Bob, and Charlie.
- Alice has no children.
- Bob has two children.
- Charlie has four children.
Scenario A: Per Stirpes
If Grandma Mary leaves her estate per stirpes and all three children are alive, they each get 1/3.
But if Bob passes away before Mary, his 1/3 share is split between his two children (they each get 1/6 of the total estate). Alice and Charlie still get their original 1/3. The "Bob branch" still gets its fair share.
Scenario B: Per Capita
If Grandma Mary says "to my descendants, per capita" and Bob is deceased, the estate might be split equally among all the "heads" still alive. This could mean Alice, Charlie, and all six grandchildren (Bob's 2 and Charlie's 4) each get an equal 1/8 share. Alice and Charlie end up with much less than they expected, and the distribution feels lopsided between the family branches.
In most cases, we find that Virginia families prefer the per stirpes approach because it feels more "fair" to the original structure of the family.
How This Fits Into Your Revocable Living Trust
When we talk about distribution, we aren't just talking about your Will. We’re also talking about your Revocable Living Trust (RLT).
We often describe an RLT as a "box with no lid." While you are alive and well, you are the one reaching in and out of the box, moving things around, and using your assets however you see fit. It’s flexible and easy to manage.
But we have to decide what happens to the items in that box when you’re no longer here to manage it. That’s where per stirpes comes in. We write instructions for the box that say, "When I pass away, take everything out of this box and divide it among my children, per stirpes."
To make sure that box is truly secure, we always recommend pairing it with a pour-over will. This acts as a safety net. If you forgot to put a specific asset (like a new bank account or a piece of property) into the box before you passed away, the pour-over will "catches" that asset and pours it into the trust so it can be distributed according to those same per stirpes instructions. You can learn more about how we handle these details on our services page.
Common Questions We Hear
"What if I don't have children?"
Per stirpes isn't just for children. You can leave assets to your siblings per stirpes. If a sibling passes away, their share would go to their children (your nieces and nephews). It’s a way to keep the inheritance within specific family lines.
"Is Virginia a 'Modern Per Stirpes' state?"
Virginia actually uses a version called "Modern Per Stirpes" (sometimes called "per capita with representation"). Without getting too deep into the legal weeds, this means the "shares" are divided at the first generation where there is at least one living person.
For example, if all of Grandma Mary's children (Alice, Bob, and Charlie) passed away before her, the estate would be divided equally among all the grandchildren at that next level. It ensures that if an entire generation is gone, the next generation starts on an even playing field.
"Can I change my mind?"
Of course. As long as you have the mental capacity to do so, you can update your Will or your box (trust) at any time. Life changes: families grow, people pass away, and relationships evolve. Your estate plan should evolve with you.
Getting Your Plan Right
Understanding terms like per stirpes is about more than just vocabulary; it’s about making sure your legacy is handled exactly the way you want it to be. You’ve worked hard for what you have, and your family deserves a plan that is clear, legally sound, and tailored to your specific goals.
Whether you are just starting to think about a Will or you need to update a Trust you created years ago, we are here to help. We provide legal services throughout Virginia, Maryland, DC, and West Virginia, focusing on the unique rules of each jurisdiction.
If you have questions about how to structure your family's "branches" or if you want to make sure your box is set up correctly, we’d love to chat. You can book a call with us here or check out our FAQ page for more answers to common estate planning questions.
Let’s work together to make sure your family tree is protected for generations to come.
Ready to protect your family's future?
Contact Don Shaw Law, PLLC today to schedule a consultation. We’ll help you navigate the complexities of Virginia law with a plan that makes sense for you.
