Ever wondered what per stirpes means? Maybe you’ve wondered the difference between per stirpes and per capita? With so many legal terms from Latin derivatives, it’s understandable that their definitions can get lost in translation. It also accounts for the number of people who will delay this important task.
Here’s a look at a few of those terms, the purpose they serve and how New York determines their respective roles in estate planning.
Per Stirpes or Per Capita?
Let’s take a look at these two often-confused words.
There is no greater grief than that of a parent who mourns the loss of her child, regardless of that child’s age. Unfortunately, there are parents who with that grief every day. Per stirpes and per capita addresses those circumstances. In its simplest form, it’s basically the way an estate is affected should a parent outlive his child.
Odds are, your children are named as beneficiaries in your will. Let’s assume you have two adult kids and six grandchildren. You’ve equally divided your estate between your children, but sadly, your oldest son dies and leaves three children. What happens next is where these determinations are made.
If your will notates your estate as per stirpes, that equal division remains in place with your youngest son receiving half of the estate, as you planned, and the other half is divided between the three children of your deceased son.
If, however, your estate is left with a per capita designation, it’s divided four ways: your surviving son and the children of the deceased son will receive equal divisions.
This is simply an oral will. New York is quite specific in what’s acceptable of an oral will. It will recognize it if it’s made by one in the military during actual service or by one at sea. Further, they’re valid for just one year following discharge from the military or three years following the mariner’s will at sea.
These wills are those written in longhand by the testator. Again, New York laws are specific in that a member of the Armed Forces currently in active service or a mariner who is at sea may incorporate a handwritten will, even if it was drawn in another state that also recognizes these wills.
An intestate estate is one that does not have a will. Every state, including New York, has its own laws to determine what ultimately happens, but generally, it includes a guaranteed amount to the spouse of up to $50,000. Any children of the deceased will divide equally one half of the total estate in most instances.
There are a number of ways an estate will may be invalidated. If there are questions about the deceased’s mental state at the time the will was drawn, one could challenge it. Also, if there are concerns that coercion was used, a judge could technically invalidate it. Any questions about the will’s execution can also delay or halt the process. This reiterates the importance of proper estate planning and why it’s not something most want to take without legal assistance.
As always, the best decision you can make is to hire an experienced Garden City NY estate planning lawyer. This way, you know the odds of problems in the future are less likely.
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