"Per stirpes" distribution to legatees under a Will

On Jun 25, 6:17 am, Stan Brown <the_stan_br...@fastmail.fm> wrote:
> Sun, 24 Jun 2007 08:01:26 -0400 from Stuart Bronstein
> <spamt...@lexregia.com>:
>
> > If there is no will, the law normally provides that all the children
> > (or in your case grandchildren) share equally.

If the predeceased children of the decedent had different numbers of children each, then the "grandchildren share equally" only in a _per_capita_ jurisdiction.  Is that the rule in CA, Stuart?

> Out of curiosity, what if there were two children, A and B, both
> deceased. A had one child A1, still living; B had three children, B1,
> B2, B3, still living.

In a default "per capita" state, or if so provided by Will, each surviving, orphaned descendant of Testator T regardless of generation would receive an equal share.   In Stan's example, each grandchild of T would get 1/4 of the residuary estate.

In a default "per stirpes" state, or if so provided by Will, each branch of T's descendants at a given generation would receive an equal share.  Then, if the scion of that branch had predeceased T, all of his living descendants at the next generation would receive an equal share of what _their_ intermediate ancestor would have received from T.

> Do all four grandchildren get equal shares of an intestate's estate,

Yes, if the distribution rule is strictly per capita.

> or does a half share descend to the children of each deceased child,
> so that A1 gets as much as B1, B2, and B3 put together?

Yes, if the rule is per stirpes.  Note that this is essentially the same result that would accrue if A and B were living when T died, put all their inheritance in savings (or if it was, e.g., a share of the acreage), and then A and B each passed that amount along to _their_own_ descendants when A and B each died.

Per stirpes is the common default rule.   Some states have a form of modified per stirpes which applies per capita distribution to all descendants at the same generational level, so that frex if A and B had died in Stan's example but they also had a childless sister, C, C would get 1/3 and the 4 orphaned grandchildren of T (regardless of which descendant of T was their parent) would share the remaining 2/3.  I'm not personally aware of any USA states that make strict per capita distribution the default in an intestate situation or where not specified in the Will, but that doesn't mean there aren't any.

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