Per capita with representation, for California 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. 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.