By representation and per stirpes, for New York trustees

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. New York’s statutory “per stirpes” is not this division (EPTL 1-2.14 begins at the nearest generation with a survivor); an instrument reaches it only by its own words.

Per capita with representation — divide at the nearest generation with a surviving member: one share for each survivor there and for each deceased member who left issue; a deceased member’s share passes down the same way to that member’s issue. In New York this is the statute’s “per stirpes” (EPTL 1-2.14).

Per capita at each generation — divide at the nearest generation with survivors; the deceased members’ shares are combined and divided equally among the next generation’s takers, so equally-near relatives take equally. In New York this is “by representation” (EPTL 1-2.16): the division of intestate shares among issue (EPTL 4-1.1), and of a gift to “issue” in an instrument executed on or after September 1, 1992 unless the instrument says otherwise (EPTL 2-1.2(b)).

The same family tree can come out differently under different governing words — which is why the instrument controls. In New York the words matter twice: “by representation” and “per stirpes” each have a statutory meaning (EPTL 1-2.16, 1-2.14), and a gift to “issue” in an instrument executed before September 1, 1992 is read under the earlier rule (EPTL 2-1.2(a)). A trust may also define its own scheme or name alternate takers, and reading a particular instrument against the statute is licensed-attorney work.