Consider this scenario: You’ve written a last will that divides your estate equally among your three children. Unfortunately, one of your children passes away before you, leaving behind two grandchildren. You might wonder what happens to the one-third share meant for your deceased child. This is where the term per stirpes comes into play. Per stirpes is a Latin phrase meaning “by branch.” In a will, it’s a legal method of ensuring that if a beneficiary dies before you, their original portion of the estate is passed down to their lineal descendants.

How Per Stirpes Distribution Works in a Will in Alberta

In Alberta, the distribution of an estate is governed by the Wills and Succession Act. This Act allows for per stirpes distribution, which means that if a beneficiary (like your child, sibling, friend, or any other relative) passes away before you, their share of your estate goes to their children. Instead of being divided among the other living beneficiaries, their portion is passed down to their descendants.

For example, if you have three children and one of them dies, their one-third share would go directly to their children (your grandchildren) and be equally divided among them. This way, the distribution of your estate stays within your family as you intended. Adopted children are treated the same as biological children under Alberta law, so they are included in this distribution.

However, stepchildren are not automatically included unless they have been legally adopted. If a stepchild is named in the will, they would inherit according to what the will says. But if they haven’t been adopted and are not named as beneficiaries, they wouldn’t inherit under a “per stirpes” distribution by default.

What Happens If the Beneficiary Dies Without Children?

If a beneficiary dies without children or other direct descendants, the per stirpes distribution does not apply. Instead, the deceased beneficiary’s share is redistributed among the remaining living beneficiaries. This ensures that the estate is still divided equally according to your wishes, even if no direct heirs are available to inherit the share.

Per Stirpes vs. Per Capita in Wills in Alberta

While per stirpes distribution ensures that a deceased beneficiary’s share goes to their lineal descendants, per capita distribution takes a different approach. In per capita distribution, the estate is divided equally among all living beneficiaries at the same generational level. If a beneficiary dies before you, their share does not go to their children but is instead redistributed among the remaining living beneficiaries.

What Is Per Capita Distribution?

Per capita is a Latin term that means “by head.” When you use per capita distribution in your will, your estate is divided equally among all living beneficiaries of the same generation. If one of your beneficiaries dies before you, their share doesn’t go to their children or other descendants. Instead, it’s redistributed among the remaining living beneficiaries. If a beneficiary dies without children, their share is redistributed equally among the remaining living beneficiaries.

For instance, if you have three children and one passes away without children, the estate would be divided equally between the two surviving children. However, if a spouse survives the deceased beneficiary, it’s important to note that the spouse does not automatically inherit the share. Therefore, it’s crucial to clearly specify in your will how such situations should be handled to ensure your intentions are upheld.

Choosing Between Per Stirpes or Per Capita Distribution

The choice between per stirpes and per capita distribution depends on your family structure and your intentions for dividing your estate. Per stirpes is ideal if you want to ensure that your assets are passed down through your family tree. This method ensures that if one of your beneficiaries, such as a child, dies before you, their share goes to their descendants (like their children). This keeps the inheritance within that branch of the family.

Per capita is better suited if you want to divide your estate equally among the surviving beneficiaries, regardless of their lineage. For example, if you have multiple children and want each surviving child to receive an equal portion of your estate, a per capita distribution ensures that every living beneficiary of the same generation receives an equal share. This can simplify the distribution process and prevent complications if a beneficiary dies before you.

However, in some cases, choosing per capita distribution can lead to unintended outcomes. For example, if you have three children and one of them dies before you, the one-third share intended for your deceased child would not automatically go to their children (your grandchildren). Instead, that share would be redistributed equally among your two surviving children. This could result in your grandchildren being excluded from the inheritance, which might not align with your original intentions, especially if you wanted them to receive their parent’s portion.

Including Per Stirpes in Your Will in Alberta

To include per stirpes distribution in your will in Alberta, start by consulting with an estate planning lawyer to ensure the correct legal language is used. For example, stating, “I leave my estate to my children, per stirpes,” means if one of your children dies before you, their share will go to their children (your grandchildren).

Regularly review your will to ensure it reflects any changes in your family or intentions. Consider discussing your plans with your family to prevent misunderstandings and ensure everyone understands your wishes. This helps avoid potential disputes and ensures your estate is handled according to your intentions.

Estate planning is essential to ensure your assets are distributed according to your wishes. Choosing the right distribution method, such as per stirpes or per capita, helps preserve your intentions and provides for your descendants. Working with a knowledgeable estate planning lawyer, like our experienced team at DLegal, ensures your will accurately reflects your goals and protects your family’s future.

We guide you through understanding the implications of different distribution methods, including per stirpes, to ensure your will is clear, legally sound, and aligned with your wishes. Contact DLegal today to start planning for your family’s future with confidence.