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In Trusts and Estates

What is right of 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.

Some states follow right of representation distribution (also known as per stirpes distribution). Under this method, the grandchildren basically stand in for their deceased parent (the child of the original deceased) and get that share to split among themselves. This is all easier to understand with the following example.

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 son and daughter would each be entitled to 1/2 of his estate. Thus, 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 ending up with 1/4 of the estate.

One of the biggest problems with this method of distribution is that different people in the same generation may be treated differently. For example, in the above example, suppose that Roger’s son also died before Roger, and that his son had one child of his own. The 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. But the daughter’s children have to split that 1/2 of the estate, meaning that they each have 1/4 of the estate, while their cousin (who is the same generation as them) has 1/2 of the estate. A situation such as this can garner a lot of anger and resentment within families and, as a result, some states follow approaches that treat all people of the same generation equally (either per capita with representation distribution or per capita at each generation distribution).