question.jpgIn Trusts and Estates

What is per capita with representation 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 with representation distribution is similar to the right of representation distribution (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) except that when all of the heirs are in the same generation, they get an equal share. This distinction is much easier to understand with the following examples.

Suppose that Roger has a son and daughter. Roger’s daughter, in turn, has two children of her own. When Roger dies, his daughter has already passed away, meaning Roger is survived by his son and his grandchildren on his daughter’s side (it doesn’t matter if Roger’s son has children of his own, because the son is still alive and there is no need to go down to a younger generation - remember, the younger generation only fills in when the older generation has already died). Assuming Roger did not have a spouse, his property would be distributed the same in this hypothetical by both the right of representation and the per capita with representation distributions - his son and daughter would each be entitled to 1/2 of his estate, meaning Roger’s son would get his 1/2 of the estate and the daughter’s children would split the other 1/2 of the estate (each therefore ending up with 1/4 of the estate). There is no difference between the two distribution methods here because the per capita with representation method only differs from the right of representation distribution when all of the heirs are in the same generation (and here, Roger’s son and grandchildren are of different generations).

However, suppose that Roger’s son also died before Roger, and that his son had one child of his own. Now all of the relevant heirs are of the same generation - they are all Roger’s grandchildren. Under the right of representation method, Roger’s son’s child would be entitled to Roger’s 1/2 of the estate, and the daughter’s children would be entitled to her 1/2 of the estate. This puts them in a less-than-equal situation, because the daughter’s children have to split their 1/2 of the estate, meaning that they each have 1/4 of the estate, while their cousin (Roger’s son’s child) has 1/2 of the estate. In a state which has distribution by per capita with representation, because the three grandchildren are all of the same generation it does not matter what share each of their parents would have been entitled to - they each get an equal share, meaning they each get 1/3 of the estate.