If you have asked this question, don’t worry, you are not alone. At my law office in the Kanata-Stittsville area of Ottawa, we often get asked this question. Most of our estate planning clients and the executors or estate trustees we work with have not heard the term “issue per stirpes” before. It likely goes without saying that the language of legal documents is unfamiliar to most people and can be difficult to understand.
“Per stirpes” is a latin term meaning “by roots” or “by branch”. “Issue” refers to everyone down the family tree starting from a particular person. So my “issue” would include my children, my grandchildren, my great-grandchildren and so on. It would not include my parents, siblings, nieces or nephews.
The phrase issue per stirpes often appears in a will as a short form way of referring to children, grandchildren, great-grandchildren, etc. Unfortunately, “per stirpes” is not always used correctly. For example, “children per stirpes” is incorrect. Even when used correctly, further clarification is usually needed, to explain the will-maker’s intention. Does a distribution that is to be made to issue per stirpes mean that:
1. everything is to be divided among all of the children, grandchildren, and great-grandchildren of the deceased or
2. the deceased’s children share the estate and that a grandchild will only get a share if the grandchild’s parent (the child of the deceased) has died?
For most of my clients, the intended distribution is #2.
Let’s look at an example. Mary is a widower with three children: John, Jim and Sue. John died leaving two children, Sally and McKenzie (Mary’s grandchildren). Jim and Sue are both single and have never had children.
If Mary’s will divides her estate among her issue in equal shares per stirpes but does not define how “issue per stirpes” applies to the distribution, all of the living children, grandchildren, grandchildren, etc. of Mary could be entitled to a share of her estate upon her death.
However, if her will clarifies how “issue per stirpes” is used to mean that the next generation only inherits a share if the parent has died, Mary’s estate would be divided as follows:
– one-third to Jim
– one-third to Sue
– one-sixth to Sam
– one-sixth to McKenzie
To take the example even further, if Mary’s daughter, Sue, had also predeceased Mary, because Sue had no children, Mary’s estate would be divided as follows:
– one-half to Jim
– one-quarter to Sally
– one-quarter to McKenzie
Why use “issue per stirpes” instead of just naming everyone and how they are to inherit? If a person’s family tree has stopped growing and there will definitely be no more children, grandchildren or great-grandchildren, it may be possible to avoid using “issue per stirpes”.
Most of us wouldn’t want to leave out a future grandchild if the grandchild’s parent had died. The easiest way to ensure that doesn’t happen is to use and properly define “issue per stirpes” so that the estate is divided among the ‘roots’ or ‘branches’ of your family with the result that each ‘root’ or ‘branch’ is treated equally. Of course, you could update your will every time there is an addition to the family. Unless money is no object or you want an excuse to meet with your lawyer, that could be a costly solution if your family is growing.
As you can see, will drafting can be tricky if you want to ensure your estate is distributed as you intend. Email [email protected] or call 613.836.9915 to make an appointment to meet with me at my Ottawa law office. We will review your unique situation and your estate planning goals to ensure you have estate planning documents including a will and powers of attorney that meet your needs and best provide for your loved ones.
Reproduction of this blog is permitted if the author is credited. If you have questions or if you would like more information, please call us at 613 836-9915. This blog is not intended to be legal advice but contains general information. Please consult a lawyer or other professional to determine how the information in this blog might apply to you.
Blog posts pre-dated December 1, 2015 were originally published under Neff Law Office Professional Corporation.
