Per Stirpes and Per Capita - Latin Phrases in Wills
I strongly dislike flowery language used in legal documents such as "whereas", "hereinafter", etc. It's easy to fall into the trap because other lawyers write that way, but I hope that more lawyers will move to a style of writing without using old archaic phrases like that. On the other hand, sometimes lawyers use technical legal words such as "per stirpes" and "per capital" in their wills for legitimate reasons. These are old latin phrases that have fairly precise meanings in the law. Personally, I choose not to use them. I believe my clients should be able to understand their wills simply by reading them without having to look through a legal dictionary. Not understanding them may make them worry that it might not express their intentions. If they are unable to easily understand a clause, they might not be aware that the will does not say what they want.
For those of you who have a will with these phrases in them, I'll try to tell you what they mean:
In this example, you have a son and a daughter. Your son has 3 children and your daughter has 2 children. You want to give to your son and daughter equally so that each will receive 1/2 of your estate.
If your son dies leaving 3 children, you want your son's 3 children to each receive 1/3 of what your son would have received. The same goes for your daughter. She has 2 children. If she is alive, she will receive her half share. If she dies before you do, then her 2 children will equally split the share your daughter would have received.
To accomplish this you would say "I give to my son and daughter per stirpes". It's a nice neat way of expressing all of that. Unfortunately, the client often doesn't understand it. Even if it is explained at the time, they may not remember 3 years later when they pull out their will to see if it still meets their current wishes.
Let's use the same family scenario again. You have a son and a daughter. Your son has 3 children and your daughter has 2 children. Your will says that you want your children and grandchildren to receive your estate on a "per capita" basis. You sign the will without question because you believe your lawyer understood what you wanted in drafting your will.
Your son dies before you do leaving 3 children on his side. Your daughter is still alive. "Per capita" means to divide your property equally amongst as many people as there are in the entire group mentioned, regardless of the branches. That means with 3 grandchildren and one daughter alive, there are 4 people in total so each will receive a 1/4 share. I would wonder if that is what you intended.
My point is this. If you meant for your daughter to receive a 1/2 share and your son's children to split the other 1/2 between them but the lawyer mistakenly used the phrase "per capita" instead, would you be able to catch and correct your lawyer's mistake? Would you know that your will did not express your intentions? Don't assume that every lawyer can readily tell you what each phrase means. I sincerely believe a reasonable number of lawyers cannot. I don't use the phrase every day so I have to pause a moment to be certain. That's why I like to spell it out in plain english (not latin), even if it does take a few more words.
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www.rickcarlson.com | Tue, 20 Feb 2018 19:27:05 CST1