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Thomas Swartz
Thomas Swartz, Attorney
Category: Legal
Satisfied Customers: 2811
Experience:  Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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Example: parent passes away, spouse predeceased. child 1 is

Resolved Question:

Example:
parent passes away, spouse predeceased. child 1 is apponted personal rep of The Will. Residuary Esate to be divided equally between Childs 1, 2 & 3 per stirpes not per capita. Does this mean Child 1 has All Control until death or can childs 2 & 3 demand their shares before child 1 dies?
Submitted: 1 year ago.
Category: Legal
Expert:  Thomas Swartz replied 1 year ago.
Hello JACUSTOMER,

"Per Stirpes" does not mean that Child 1 has all control until he/she dies. "Per stirpes" simply means that the beneficiaries take by their representation or by class. Whereas "per capita" means that the beneficiaries take by the total head count or the total number of beneficiaries alive.

The "per stirpes"/"per capita" distinction really only matters if one the childs 1, 2, 3 dies before the decedent.

If in your situation Child 1,2 and 3 are still alive, then they all get an equal share of the residuary estate. Child 1 does not get the residuary estate until he/she dies. All children (1, 2, and 3) get an equal 1/3 share of the residuary estate.

But if one the Childs 1,2 or 3 had died then "per stirpes" the children of Child 1,2, 3 would accede to class of the deceased child, and they would be entitle to the deceased child's share of the residuary estate.

This may sound a little complicated. So if you want to see some additional examples, see: What's the Difference Between Per Stirpes and Per Capita.

I hope this helps.

Thomas
Customer: replied 1 year ago.

What if all personal & real estate properties are in Child 1 name and deceased and/or is given to child one upon death?

Expert:  Thomas Swartz replied 1 year ago.
In your first question you mentioned the "residuary estate." Everything I mentioned above only applies to the "residuary estate." So let me explain what that the "residuary estate" is. The "residuary estate" is that part of the estate which is not specifically gifted in the will. In other words, it is sort of what is left over after specific bequests are made.

So, in his/her will the parent can gift specific property to only one child, and not the others. And in this case only that child will have complete ownership of that specific property. The other children will not have any ownership interest in that property

In addition, when property is held jointly by two people that property does not even go into a person's estate if the property is owned jointly with rights of survivorship. In other words jointly held property (with rights of survivorship) is not distributed by the will at all.

It appears in your situation that Child 2 & 3 are only entitled to an equal share of what is in the residuary estate. Now what exactly is in the deceased person's residuary estate I can not tell you. That would require a detailed analysis of the will and the deceased person's assets.

Thomas
Thomas Swartz, Attorney
Category: Legal
Satisfied Customers: 2811
Experience: Twenty one years experience as a lawyer in New York and New Jersey. Former Appellate Law Clerk.
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