In situations where a testator has children, it is almost universally the case that the testator wishes to leave his or her assets to those children. The question is in what manner. Though a testator has a great deal of flexibility to decide how to dispose of the probate estate, there are two distinct methods of how to leave assets to children: the “children then living” approach; and the “per stirpes” approach.
These approaches can perhaps best be described using hypothetical examples. Imagine the testator has three children, “A” “B” and “C.” If the will intends to leave each child an equal share, under the “then living” approach, if one of the children predeceases the testator (say “A”) then B and C would get an equal share of 50% instead of the originally intended 33%. A’s share is cancelled out by his death prior to the testator, as only the testator’s “children then living” at the time the will is executed take under that approach. Thus if A had children, and predeceased the testator, A’s children would not take under the will.
Alternatively, under a per stirpes approach, if A has children and predeceases the testator, A’s children would inherit A’s 33% interest, and B and C would continue to only receive their originally intended 33% interest. A’s share is not cancelled by his passing prior to the testator, but instead his interest continues down his line to his children who are then able to take under the will.
Image by: C Goulao