Per stirpes, representation and per capita at each generation, for Georgia 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 descendants living; a deceased child’s share splits among that child’s own descendants. Georgia’s intestate statute divides this way among a decedent’s children (O.C.G.A. § 53-2-1(c)(3)), and many Georgia trusts use the 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 descendants; a deceased member’s share passes down to that member’s own descendants. Not Georgia’s intestate default; a trust may adopt it by its words.

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. Not Georgia’s intestate default; a trust may adopt it by its words.

The same family tree can come out differently under different governing words — which is why the instrument controls. Georgia’s statute states the per stirpes division for an intestate estate (O.C.G.A. § 53-2-1); whether a particular trust’s “per stirpes”, “by representation” or “per capita” means one system or another is a question of the instrument’s own words, which a licensed Georgia attorney of your choosing can read with you.

Frequently asked questions

What does "per stirpes" mean under Georgia law?

For an intestate estate, O.C.G.A. § 53-2-1(c)(3) gives the children of the decedent who survive equal shares, with the descendants of any deceased child taking, per stirpes, the share that child would have taken if in life — the division begins at the children's generation and a deceased child's share passes down that child's own line. The same pattern applies among siblings and among uncles and aunts (§ 53-2-1(c)(5), (7)).

What is the surviving spouse's intestate share in Georgia?

A surviving spouse with no child or other descendant of the decedent is the sole heir; where the decedent is also survived by a child or other descendant, the spouse shares equally with the children, with the descendants of a deceased child taking that child's share per stirpes, and the spouse's portion is never less than a one-third share (O.C.G.A. § 53-2-1(c)(1)). Georgia has no elective share; the spouse's and minor children's statutory protection from a will or an estate is year's support (§ 53-3-1).

Does Georgia define "per stirpes" in a trust?

O.C.G.A. § 53-2-1 states the per stirpes division for an intestate estate; a trust instrument's own "per stirpes", "by representation" or "per capita" is read as the instrument's words, which may define the term or adopt the statute's pattern — a question for the instrument and, where it is unclear, a licensed Georgia attorney of your choosing.

Which distribution rule does my trust use?

The trust instrument's own words decide — a trust may say per stirpes, by representation or per capita at each generation, define its own scheme, or name alternate takers. This page shows each rule's arithmetic; reading a particular instrument is a question for a licensed Georgia attorney of your choosing.

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 Georgia law, not legal advice.