[WSBAPT] Class of contingent beneficiaries

Fri Sep 1 15:08:37 PDT 2023

Thanks Amy. I must admit that after that research and further consideration, I stopped using statutory terms altogether. I now include a clear definition of either per stirpes or per capita at each generation, after asking the client (if relevant/warranted) to consider that if their own children or siblings were ALL dead, would they want grandchildren/nieces/nephews at that point to be treated equally (per capita) or to share the share 😉 their surviving parent would have gotten.

It’s definitely an “Aha! Whoa! . . . ” moment for many clients, especially ones with one child with 5 children and one child with 1 child. Or no descendants and only siblings with nieces and nephews, say.

I choose to avoid “representation” altogether, in both Idaho and Washington, personally, so that there is nothing to “interpret” and a court is interpreting the document only and not resorting to elaborate case law on “representation” if it gets to that point.

Just battle-weary experience from one of my early cases after moving back to the Idaho/Washington region.

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Lewis, Amy C.
Sent: Friday, September 1, 2023 2:52 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Class of contingent beneficiaries

With regard to documents we are drafting, this goes back to Phil’s comment yesterday that if we have to look this up we have failed in our drafting.  😊  That being said, we routinely use “by right of representation” in our documents.  Something like “the residue of my estate shall be divided into equal shares, one share for each of my children who survives me and one share for each child who does not survive me but leaves surviving descendants. Each share for a deceased child shall be distributed to the descendants of the deceased child by right of representation.”

Amy Lewis, Attorney
Pronouns she/her/hers
[cid:image001.png at 01D9DCE6.2EFC3650]
909 A Street, Suite 600 | Tacoma, WA 98402
phone 253.572.4500 | fax 253.272.5732 | www.eisenhowerlaw.com<http://www.eisenhowerlaw.com/>
From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Joshua McKarcher
Sent: Friday, September 1, 2023 2:39 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Class of contingent beneficiaries

Heather and Rebecca,

I mean to engender no dispute, because this doesn't really matter until it does, but see below and attached and consider that neither Blacks nor Washington's statute addresses anything below.

Imagine a decedent with 6 nieces and nephews as his intestate heirs: 5 of them by one sibling and 1 of them by a second sibling. Assume all survive and there were no predeceased.

Does his $2 million go:

$1 million to the 1 nephew and $1 million shared among the other 5?

OR

$2 million divided 6 ways?

"Strict per stirpes" gives you the first outcome; modern "representation" (as usually implemented by most states who have it) gives you the second . . . because most definitions of "representation" require you to make the first division of the estate at the nearest generational level with at least one surviving heir.

Per stirpes does not.

The UPC has noodled with different versions of these phrases over its life.

I'm sorry to throw this wrench at people, but this is not my imagination. If the copyright gods will please forgive me, see the attached and enjoy the long weekend! 😊

Best, Josh

-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Rebecca King
Sent: Friday, September 1, 2023 2:22 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Class of contingent beneficiaries

I agree with Heather.  "Per stirpes" and "by right of representation" are the same thing.  See definition of representation under RCW 11.02.005:

            (17) "Representation" refers to a method of determining distribution in which the takers are in unequal degrees of kinship with respect to a decedent, and is accomplished as follows: After first determining who, of those entitled to share in the estate, are in the nearest             degree of kinship, the estate is divided into equal shares, the number of shares being the sum of the number of persons who survive the decedent who are in the nearest degree of kinship and the number of persons in the same degree of kinship who died before the           decedent but who left issue surviving the decedent; each share of a deceased person in the nearest degree must be divided among those of the deceased person's issue who survive the decedent and have no ancestor then living who is in the line of relationship between   them and the decedent, those more remote in degree taking together the share which their ancestor would have taken had he or she survived the decedent.

Warmest regards,

Rebecca King

Attorney

Northwest Elder Law Group

2150 N. 107th Street, Suite 501

Seattle, WA 98133

Main: (206) 937-6102

Direct Line and Fax: (206) 866-6544

Providing Services in Elder Law

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Heather de Vrieze

Sent: Friday, September 1, 2023 2:03 PM

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Subject: Re: [WSBAPT] Class of contingent beneficiaries

I can't see your chart, but I think they are the same. Black's Law Dictionary agrees with this. https://thelawdictionary.org/per-stirpes/

PER STIRPES Definition & Legal Meaning

Definition & Citations:

Lat. By roots or stocks; by representation. This term, derived from the civil law, is much used in the law of descents and distribution, and denotes that method of dividing an intestate estate where a class or group of distributees take the share which their stock (a deceased ancestor) would have been entitled to, taking thus by their right of representing such ancestor, and not as so many individuals; while other heirs, who stand in equal degree with such ancestor to the decedent, take each a share equal to his. See Rotmanskey v. Heiss, 86 Md. 633, 39 Atl. 415.

Heather

Heather S. de Vrieze

Attorney-at-Law

de Vrieze | Carney PLLC

3909 California Avenue SW

Seattle, WA 98116-3705

(206)938-5500

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-----Original Message-----

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Susan Donahue

Sent: Friday, September 1, 2023 1:35 PM

To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>

Subject: Re: [WSBAPT] Class of contingent beneficiaries

I appreciate this discussion. I made this chart to explain the three kinds of beneficiaries. Maybe too simple. But I’m my chart (mind) per stirpes and by representation are two distinct distribution schemes. Am I wrong in this chart?

Susan Donahue

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