Right of Representation (a/k/a Per Stirpes): What Does it MEAN?

“Right of Representation” also known as “per stirpes.”  You may have seen one or more of these phrases in a movie or TV show or maybe even your own Will or Trust document.  But what does it mean? 

Right of Representation, or per stirpes, means that whatever is being divided goes equally to those persons named (i.e. “children” or “descendants”).  If one of those persons is deceased, then his or her share of the estate is equally divided among his or her children.

The following flow chart illustrates an estate divided by “right of representation.”  Shown below is a scenario about Deceased Person (DP). DP has passed away.  DP had three children, but Child 1 passed away before DP.  Child 1 has two children, Grandchild 1.1 and Grandchild 1.2.  Unfortunately, Grandchild 1.1 has also predeceased DP, leaving Great Grandchild 1.1.1 and Great Grandchild 1.1.2.

DP’s will states that his whole estate is to be divided among his descendants, per stirpes.  So, as illustrated below, Great Grandchild 1.1.1 ends up with 1/12 of DP’s estate.  Notice that while Child 1’s children get a share of DP’s estate but Child 3’s child does not.  That is because Child 3 is still alive, so in theory, when Child 3 dies, Grandchild 3.1 will inherit from his parent.  Had Child 1 survived DP, Child 1’s children and grandchildren would not have gotten any of the DP’s estate at DP’s death.

And Who Exactly is That?: Defining Heirs-at-Law

“The patient is not likely to recover who makes the doctor his heir.”

--Thomas Fuller

          In the event that a person dies without a will, the state will need to determine who are the deceased person’s “heirs-at-law.” This is also true in the event that all the devisees in a Will predecease the decedent.

            In Minnesota, a person’s heirs-at-law and determined by statute.  Below is an illustration of a table used to determine heirs-at-law.  Imagine a scenario where a person dies without a spouse, without children, and with no living parents or siblings.  Who would inherit the deceased person’s assets?  Looking at the table, the next set of individuals to inherit would be any living nieces or nephews.  If there were no living nieces or nephews, then grand nieces or nephews would inherit.  If there were no grandnieces or nephews, then we move onto the next column and work our way down.