Per stirpes and the two per capita systems, for Illinois 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. In Illinois this is the intestate division among descendants (755 ILCS 5/2-1) and the reading of "per stirpes" in a living trust's gift to a deceased descendant (760 ILCS 3/114).

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. Illinois’s statutes give no instrument phrase this meaning — a trust that wants it says so in its own 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. Illinois’s statutes give no instrument phrase this meaning either — a trust that wants it says so in its own words.

The same family tree can come out differently under different governing words — which is why the instrument controls. In Illinois the statutes say "per stirpes" and leave the term to its ordinary legal meaning (755 ILCS 5/2-1; 760 ILCS 3/114); a trust may define its own scheme or name alternate takers, and reading a particular instrument against the statute is licensed-attorney work.

Frequently asked questions

What does "per stirpes" mean under Illinois law?

The Probate Act divides an intestate estate among the decedent's descendants "per stirpes" (755 ILCS 5/2-1) and does not define the term; in its ordinary legal meaning the division begins at the children's generation — one share for each child living or deceased with descendants living, a deceased child's share passing to that child's own descendants. That is the calculator's strict per stirpes column, labeled as Illinois's default.

What happens when a trust beneficiary dies before the settlor in Illinois?

For a gift under a living trust to a descendant of the settlor who dies before the gift takes effect in possession or enjoyment, the Illinois Trust Code gives the gift to the deceased beneficiary's descendants then living, per stirpes (760 ILCS 3/114(a)); a gift to someone who is not the settlor's descendant lapses unless the instrument provides otherwise (760 ILCS 3/114(c)). The trust's own words control where they say something different.

Does Illinois use "by representation" or "per capita at each generation"?

Illinois's intestacy statute uses "per stirpes" throughout (755 ILCS 5/2-1); no Illinois statute gives an instrument's "by representation" or "per capita at each generation" a statutory meaning. A trust that uses either phrase, or defines its own scheme, is read on its own words — licensed-attorney work.

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 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 Illinois law, not legal advice.