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per stirpes

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Vermi

New member
My father’s trust stipulated the following distribution of assets at his death: 85% divided equally to 3 sons and 15% to a grandson of the 4th son, deceased. One of the 3 sons, unmarried, no descendants, predeceased dad, leaving 2 sons and one grandson as beneficiaries.The trust document reads, “If son #3 has no then living descendants, my Trustee shall distribute the balance of this trust share to my then living descendants, per stripes.” Question: If the sentence ended with “living descendants,” we would think Son #3’s share would be distributed equally to the 3 remaining heirs. However, since the grandson is not a full blood relative of the testator, and was apportioned 15% of the assets, the per stirpes clause could mean the 2 sons, closer related by blood (root) should be entitled to divide the 85% balance of assets. What is the correct legal rendering the trustee should follow?
 


Taxing Matters

Overtaxed Member
A per stirpes distribution would mean that the trust is first divided into 3 shares, one for each son living at the time of the father's death (A and B) and who had descendants living at the time of the fathers death (D). Son C died before the father did and had no descendants so he's not taken into account. So living sons A and B would each get one-third of the "balance of this trust" and D's children, if all are still living, would equally divide D's one-third share.
 
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Vermi

New member
A per stirpes distribution would mean that the trust is first divided into 3 shares, one for each son living at the time of the father's death (A and B) and who had descendants living at the time of the fathers death (D). Son C died before the father did and had no descendants so he's not taken into account. So living sons A and B would each get one-third of the "balance of this trust" and D's children, if all are still living, would equally divide D's one-third share.
You avoided answering about the grandson who was specifically designated in the original trust for 15%. Secondly, the 3 brothers were entitled to 85%, but one died. Is the grandson entitled to a third of the deceased son’s portion?
 

FlyingRon

Senior Member
What do you mean by "not a full blood" relative. It's a little hard to follow who is a descendent of who in your explanation.
 

Vermi

New member
What do you mean by "not a full blood" relative. It's a little hard to follow who is a descendent of who in your explanation.
The original 4 sons were children of 2 parents, hence Full blood relatives. When a son had a child , that grandchild of the testator had 50% of his father’s blood (genes) and 50% of his mother’s blood (genes). The sons, it seems, are “closer” to their parents genetically, with more “rights” (per stirpes) than grandchildren, great-grandchildren, great-great-grandchildren, etc. Again, going back to the original phrase in the trust, the sentence does NOT END with just “living descendants” but ADDS the words “per stirpes” perhaps indicating “per closer bloodline genetically,” thus entitling the 2 sons to split the 85% portion in half and leaving the grandson with the original 15% share per the original trust document.
 

FlyingRon

Senior Member
Nope, percentage of the deceased's blood does not enter into it. Essentially, you divide the money among the sons who are either living or have descendents. Each branch gets an equal share. If the son is dead, then his share it is apportioned to his children, and so forth.
 

Zigner

Senior Member, Non-Attorney
Again, going back to the original phrase in the trust, the sentence does NOT END with just “living descendants” but ADDS the words “per stirpes” perhaps indicating “per closer bloodline genetically, ...”
That is not at all what "per stirpes" means. There are plenty of sites that define "per stirpes" that you can check out.
 

Taxing Matters

Overtaxed Member
You avoided answering about the grandson who was specifically designated in the original trust for 15%. Secondly, the 3 brothers were entitled to 85%, but one died. Is the grandson entitled to a third of the deceased son’s portion?
I explained how per stirpes works. The problem is that I don't have the full trust to read. The trust says that the per stripes applies to the "balance of this trust" but without reading the trust in full I cannot tell if that is the whole of the trust or the trust amount left after other distributions are made. But whatever part of the trust that is, for that portion it will work in the way I described. You'd need to take the trust instrument to a trust or estate attorney so that the entire document can be read and analyzed to figure out how the specific gifts in the trust coordinate with that per stirpes distribution. I don't have enough here to tell you that.
 

Taxing Matters

Overtaxed Member
but ADDS the words “per stirpes” perhaps indicating “per closer bloodline genetically,” thus entitling the 2 sons to split the 85% portion in half and leaving the grandson with the original 15% share per the original trust document.
Per stirpes means "by the stocks" and is a specific way of dividing the estate among descendants. It does not work as you suggest. Again, let's suppose that the decedent (father) has 4 children, A, B, C, and D. A and B are still living. C died before the father but never had descendants of his own. D died before the father, too, but had two kids, E and F, both of whom are still living. Using by the stocks, we divide up the estate or trust first by the number of kids that are still living plus the number of kids that died but that have at least one living descendant. In this case, there are 3 kids that meet that requirement, so the estate/trust is initially split into 3 shares. A and B thus each get 33% of the estate. D's one third share then goes to his descendants, repeating the same process. D has two children, both of whom still live. So E and F split their father's 33% of the estate or trust, so they each get 16.67% of the decedent's estate, or trust. Because E and F are still living and D had no deceased children we stop there. Even if E and F have kids, they don't get anything here.
 

FlyingRon

Senior Member
And in this sense "stock" refers to a tree body ( analogous to stalk and stump which has similar etymology). The thing generally refers to the taxonomy of a plant. Latin meanings include stock, stem, stalk, root, lineage, offspring, descendent, source/origin/beginning. You'll see a legal translation as being "by the branch" (as I said earlier) or "by the roots".


TM, of course, describes it right. The opposite is "per capita" (by the head) which would indicate equal shares by all surviving heirs regardless of lineage.
 

zddoodah

Active Member
My father’s trust stipulated the following distribution of assets at his death: 85% divided equally to 3 sons and 15% to a grandson of the 4th son, deceased. One of the 3 sons, unmarried, no descendants, predeceased dad, leaving 2 sons and one grandson as beneficiaries.
This is somewhat difficult to follow. I assume your father had four sons, A, B, C and D. It sounds like D died before the trust was created. Correct? Also, when you refer to "a grandson of the 4th son," I assume you actually mean a son of the fourth son, who would be your father's grandchild. Correct? In any event, we'll call that person E. C, while alive at the time the trust, died before your father, so now only A, B and E are alive. Have I got that all correct?

The trust document reads, “If son #3 has no then living descendants, my Trustee shall distribute the balance of this trust share to my then living descendants, per stripes.”
This is unclear. What does "the balance of this trust share" mean? "Balance" usually indicates the amount left over after some sort of deduction or adjustment.

Question: If the sentence ended with “living descendants,” we would think Son #3’s share would be distributed equally to the 3 remaining heirs. However, since the grandson is not a full blood relative of the testator, and was apportioned 15% of the assets, the per stirpes clause could mean the 2 sons, closer related by blood (root) should be entitled to divide the 85% balance of assets. What is the correct legal rendering the trustee should follow?
Your explanation of "full blood relative" in post #8 in the thread is flawed. You seem to be alluding to the fact that your father is only one of four grandparents of E (i.e., 1/4 of E's DNA comes from your father, while the rest comes from his other three grandparents). However, you and your siblings are not "full blood relatives" because only 1/2 of your DNA comes from your father; the other 1/2 comes from your mother. By your reasoning, a "full blood relative" is something that cannot exist except where a child is the product of incest.

Regardless, if I have the facts correct, then C's share is divided evenly between A, B and E. This is the same result that would obtain if the sentence had not included the words "per stirpes." In this context, per stirpes means that each of the other three sons' lines (A's line, B's line and D's line) gets an equal share. Since D predeceased your father, his share goes to his descendants. Since E is his only descendant in the next generation, he gets 100% of D's share. While you're right that E being further removed could mean he'd be entitled to less, the fact that he is the only person of that generation in D's line means he gets what D would have gotten had D still been alive. If, for example, D had had four children (E, F, G and H), then we'd have a situation where A and B would each get 1/3 of C's share and E, F, G and H would each get 1/4 of 1/3 (i.e., 1/12) of C's share. The fact that, under the original split, A, B and C each get 1/3 of 85% (i.e., 28.33%) and E only gets 15% is not relevant to how C's share gets redistributed on account of C predeceasing your father.
 

not2cleverRed

Obvious Observer
The original 4 sons were children of 2 parents, hence Full blood relatives. When a son had a child , that grandchild of the testator had 50% of his father’s blood (genes) and 50% of his mother’s blood (genes). The sons, it seems, are “closer” to their parents genetically, with more “rights” (per stirpes) than grandchildren, great-grandchildren, great-great-grandchildren, etc. Again, going back to the original phrase in the trust, the sentence does NOT END with just “living descendants” but ADDS the words “per stirpes” perhaps indicating “per closer bloodline genetically,” thus entitling the 2 sons to split the 85% portion in half and leaving the grandson with the original 15% share per the original trust document.
That's not how it works. Not legally, at least.

Hint: adopted children are fully recognized legally as being "real" children of their adoptive parents. (Just an example.)
 

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