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In Trusts and Estates

# What is per capita at each generation distribution?

The process of distributing property in intestacy can get rather complicated. For example, the process of distribution is relatively straight forward if someone dies but all of their children are still alive. It gets considerably more involved, however, when one of the deceased’s children is no longer alive. In that case, the child’s children (that is, the deceased’s grandchildren) are generally entitled to some amount of the deceased’s estate. Different states have adopted different forms of distribution which apply in this situation, when you have multiple generations of surviving descendants who are each entitled to some share of the property.

The per capita at each generation distribution shares certain similarities to both the right of representation distribution method (which is where the grandchildren stand in for their deceased parent (the child of the original deceased) and get that share to split among themselves) and the per capita with representation distribution method (which is where heirs of the same generation get an equal share if they are the only heirs). With per capita at each generation, all heirs of the same generation always get an equal share. The distinction between these three methods is much easier to understand with the following examples.

Suppose that Roger has three children, Sam, Wendy and Declan. Let’s further suppose that Sam has one son, and Wendy has two children. Finally, let’s suppose that both Sam and Wendy died before Roger. Thus, if Roger did not have a spouse when he died, there are three sets of heirs entitled to his property, Declan, Sam’s son, and Wendy’s two children. In states that follow the right of representation, Declan, Sam and Wendy would each be entitled to an equal share of the estate (1/3) and Sam and Wendy’s children would simply take their shares. That means that, in the end, Declan has 1/3 of the property, Sam’s son has 1/3 of the property (Sam’s share), and Wendy’s children each have 1/6 of the share (as they had to split Wendy’s share). This would be the same in states that follow per capita with representation, because the only difference is when all of the heirs are of the same generation (and that’s not the case here, because Declan is a different generation from the grandchildren). However, in states that follow per capita at each generation, it plays out a little differently. Declan still gets his 1/3 share. However, the remaining 2/3 of the property are split evenly by Sam and Wendy’s children, because they are the same generation, which means they would each get 1/3 of the remaining 2/3 of the property (that is, each of the three grandchildren would end up with 2/9 of the original estate).