The three systems, in one sentence each
Strict per stirpes — the division always begins at the children’s generation, one share per child living or deceased with issue living; a deceased child’s share splits among that child’s own issue. In California this is §246(a), which an instrument executed on or after January 1, 1986 receives when it says “per stirpes,” “by representation” or “by right of representation,” unless it expressly provides otherwise (§246(b)).
Per capita with representation — California’s rule where a statute calls for it, intestacy among them (Prob. Code §240): the property is divided into as many equal shares as there are living members of the nearest generation with a living member, plus deceased members of that generation who left issue living; a deceased member’s share is divided the same way among that member’s issue.
Per capita at each generation — divide at the nearest generation with survivors; the deceased members’ shares pool and split equally among the next generation’s takers, so equally-near relatives take equally.
The same family tree can come out differently under different governing words — which is why the instrument controls. In California the words matter twice: §240 applies where a statute calls for it, and an instrument’s “per stirpes” or “by representation” means §246’s division unless the instrument says otherwise. A trust may also define its own scheme or name alternate takers, and reading a particular instrument against the statute is licensed-attorney work.
Try the arithmetic yourself
Model a family shape — who is living, who left children — and see each system’s exact split. Two generations (children and grandchildren); this is the math of each rule, not a suggestion of which to use.
Child 1
Child 2
- Grandchild 2.1
Child 3
- Grandchild 3.1
- Grandchild 3.2
| Person | Strict per stirpes | Per capita w/ representation (CA default) | UPC per capita at each generation |
|---|---|---|---|
| Child 1 | 1/3 (33.3%) | 1/3 (33.3%) | 1/3 (33.3%) |
| Grandchild 2.1 | 1/3 (33.3%) | 1/3 (33.3%) | 2/9 (22.2%) |
| Grandchild 3.1 | 1/6 (16.7%) | 1/6 (16.7%) | 2/9 (22.2%) |
| Grandchild 3.2 | 1/6 (16.7%) | 1/6 (16.7%) | 2/9 (22.2%) |
Arithmetic only — the exact fractions each rule produces for the shape you modeled, with California’s default labeled as what Prob. Code §240 provides where a statute calls for it. Not advice, and never a statement of which rule YOUR trust uses — the instrument’s own words decide that, and reading them is licensed-attorney work.
The Learning Center is general information about California law — not legal advice, and not a substitute for advice from a licensed California attorney about your specific facts. TrusteeClear is software, not a law firm.
Frequently asked questions
- What does per capita with representation mean under California law?
- Prob. Code §240 divides the property into as many equal shares as there are living members of the nearest generation of issue then living, plus deceased members of that generation who leave issue then living; each deceased member's share is divided in the same manner among that member's living issue. It applies where a statute calls for it — intestate succession among issue is one such statute.
- What does "per stirpes" or "by representation" mean in a California trust?
- For an instrument executed on or after January 1, 1986, Prob. Code §246(b) gives those words the strict per stirpes division of §246(a) — equal shares at the children's generation of the designated ancestor — unless the instrument expressly provides otherwise. The calculator's strict per stirpes column shows that arithmetic.
- Which distribution rule does my trust use?
- The trust instrument's own words decide — a trust may say per stirpes, per capita, define its own scheme, or name alternate takers. This page shows each rule's arithmetic; reading a particular instrument against the statute is licensed-attorney work.
- Do the three systems always produce different shares?
- No — while every child is living they produce identical shares. The rules diverge only after certain deaths, which is exactly when the wording in the instrument starts to matter.
General information about California law, not legal advice.