Legal Question in Wills and Trusts in Texas

Re: Clarification of legal terminology

per stirpes = per root

per capita = per head

For example (a very simple example that overgeneralizes),

Decedent (D) passes away leaving 2 children, A and B.

However, both A and B have passed away before D. A had one child A1,

and B had 2 children B1 and B2. Assuming D's estate was given to his

heirs, under per stirpes, 50% would go to A1, 25% to B1 and 25% to B2.

Under per capita, A1, B1 and B2 would each receive 33%. Note again

that this overgeneralizes, but demonstrates the difference between

per stirpes and per capita.

Re: Clarification of legal terminology

When the intestate's children, descendants, siblings, aunts and uncles, or any other relatives standing in the first or same degree alone come into the distribution of the estate upon intestacy, they take per capita in their own right. However, when a part of the intestate relatives are dead and a part living, the descendants of the dead intestate relatives have the right to a share of the estate determined in a per stirpes manner, but such descendants shall inherit only such portion of the estate as the parent through whom they inherit would be entitled to if he or she were alive. A per capita distribution means that all of the relatives who are of the same degree of kindred share equal portions of the total intestate estate. On the other hand, a per stirpes distribution means that the relatives who are in a more remote degree of kinship with the intestate are entitled to the intestate estate through representation. They are entitled only to the share of the estate to which the person through whom they inherit would have been entitled had he or she survived the intestate.

The more common scheme is "per stirpes."