Per Stirpes Rules – The Basics

26 January 2023

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We all know the per stirpes rule, or think we know it in any event. We further know that it roughly translates as “by branch” or we sometimes refer to as “by the root”.. But that doesn’t really help. What is equally unhelpful is the definition of “per stirpes” in section 3(3) of the Succession Act, 1965: really it is best understood by examples.

I have come across the per stirpes rules in some solicitor queries and some live cases recently and I wish to share out my experiences/learnings from these and some examples.

Example 1 – Parent/Children

The principal application of the rule is through the parent and issue scenario. So Theresa and Paddy had 5 children, Paddy Jnr (with 3 children) Daniel (with two children), Michael (who has four children), Peggy (who has no children) and Susan (who has 6 children). Neither Theresa nor Paddy Snr made a will. Theresa is the last of the spouses to die. When she died Paddy Jnr, Michael and Peggy had all pre-deceased and Daniel and Susan survived. The estate is divided four ways. As Peggy pre-deceased with no children her share lapses. Paddy Jnr’s one quarter share is divided 3 ways, with Michael’s one quarter share being divided four ways and the share of each of Susan and Daniel being a quarter.

Example 2 – Brother/Sisters

John died. He had 4 brothers and sisters. 2 pre-deceased (Mary and Tom – not their real names!) with children surviving and two predeceased (Alex and Edward) with no children. Mary had 4 children and Tom had 3. They are all living. How does per-stirpes work here. The answer is, it doesn’t. For per-stirpes to work, two conditions must exist. There must be some surviving relative at the same level. In this case there are none. Further, the pre-deceased brother or sister must have surviving children when the deceased dies.

So to follow through on this example, as none of the siblings survived John, then, the shares pass what is known as “per capita”. So in this case, 7 ways equally amongst the children of Mary and Tom. The shares do not pass through Mary and Tom but pass to their children because they all stand in equal degree to John (as nephews and nieces).

If Edward survived it would have been totally different. Then the estate would have been divided in three distinct bundles. That is because the two conditions would have been met. A surviving sibling and a pre-deceased sibling with children surviving. So if Edward survived in this example, a one third share goes to Edward, the other one third share is divided equally between the children of Mary and the final one third share would be divided between Tom’s children.

If none of the siblings had children and say if Edward survived but Mary, Tom and Alex all predeceased their brother John, then Edward would inherit the entire estate.

More to Come . . .

This mail is just a simple reminder of the rules. It may be useful for those starting in probate or support staff who need a refresher. We will be ramping up the complexity in future blogs.

If you have any probate, will drafting or other similar queries please do not hesitate to reach out to me through the solicitor query service on this site. Colm Kelly