An Inheritance Left to Children by a Will

Nicholas Stratton
October 20, 2022

There is a situation few of us care to think about when we are considering transferring our property to our children. What should happen to our property if our children die before us?

I read that when making a will, I could leave my property to my children “per stripes.” Why is the law talking about us like we’re some kind of zebra?

The phrase is Latin and it is “per stirpes,” not “per stripes.” Some bits of property law are extremely ancient in origin and this is one of them.

If a child has died before the parent who leaves property through a will or trust, and that deceased child has passed without leaving any children, many would say that the property should be divided among the remaining children. That situation is pretty straightforward. Suppose that you had three children, and your will said to distribute the property to your children in equal shares “per stirpes.” Then one of your children died without children of their own. The “per stirpes” designation in your will would mean that your surviving children would split your property into two equal shares.

The complication comes, though, when one child has died leaving his or her own children. Let’s call those children “grandchildren.” Would you, as the parent leaving the property, want those “grandchildren” to split the share you had intended for your now-deceased child?

That would be the simplest solution and that is what “per stirpes” would do. If you had three children, and one died leaving two “grandchildren,” your will would direct that your two surviving children would get one-third each, and the surviving “grandchildren” would get one-sixth each. That is distribution “per stirpes.” The phrase means “by the branch.”

The problem there, though, is that from the grandchildren’s point of view, they get less than the other grandchildren. There are a couple of other options we can discuss with you. Or, you can do as most people do, opt for “per stirpes,” and leave it at that.

Zebras have nothing to do with it.

If you’d like to discuss your particular situation, please don’t hesitate to reach out. Please contact our New Jersey office or call us at (201) 464-2040 to discuss your legal matters.

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