representation

"Representation" in plain English

    When a will or an intestate succession law distributes money to "my issue" or "my descendants," how should those assets be distributed when one or more of the people in the group has predeceased the decedent? Note that this question deals mainly with descendants or issue. There is a similar problem when a gift is made by will to a specific person or group of people, and that person does not survive the testator. That latter problem is not our concern here.

Per Capita
    One possibility is that living descendants of a deceased heir do not inherit that heir's share. This is essentially the system known as per capita ("by the heads"), or share and share alike. Thus, a gift in a will "to my children per capita" would give an equal share to each living child. If there is a deceased child with living children (i.e., grandchildren), the grandchildren get nothing (the gift was to "my children"). Every living person who fits the description gets an equal share, and anyone else gets nothing.
    Likewise, to give one's estate "to my issue (or descendants) per capita" would mean that each living descendant would get an equal share. Thus, if the testator has one child and two grandchildren, each of those three people would get 1/3 of the estate. Thus, a per capita distribution does not use representation. Shares do not pass via a deceased person, but go directly (and only) to living people who fit within the designated group.
    Courts tend to suspect that testators do not really intend the effects of per capita distribution ("you can't be serious!"), because it treats higher-level heirs the same as lower-level heirs (i.e., if a gift is "to my issue per capita" a great-grandchild would get the same amount as a child). CPC 245 provides that if a will uses the term "per capita" and the living members of the designated class belong to different generations, a court must distribute the gift by using modern per stirpes (below), and not per capita! So if you really want per capita, it is best to be very explicit.

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    There are three systems of distribution that use representation, described below. In a system with representation, the living heirs of a deceased recipient "represent" the interests of that deceased recipient (i.e., the living heirs receive the share of their deceased ancestor).

Classical (English) per stirpes
    The easiest system using representation is classical or English per stirpes ("by the stocks"). Begin by drawing an upside-down tree with the decedent on the top and a branch descending below the decedent for each child, and so on. (This is hard to do in html, so I will not try to make such a tree here, but you should remember how to do it from class, or follow an example in the casebook). Then prune each branch that has no living heirs--there always has to be someone at the bottom of a branch to take a share. This is logical enough, isn't it?
   At each generation, starting from the top, divide the estate into one share for each branch. If a person is alive, she gets to keep her share. If she is deceased, her share drops down to the next generation in the same manner.
    Suppose a decedent has four children: A (alive, with one living child), B (deceased with two living children), C (deceased with 3 living children), and D (no decendants). First you prune D. You then divide the estate into three shares and give 1/3 of the estate to A. B's 1/3 is split in two and given to B's kids (who get 1/6 of the total estate each). C's kids share C's one-third and thus get a 1/9 share of the estate. A's child gets nothing because A is alive and takes her share.

Modern (American) per stirpes
    MPS is the system used in California intestacy (see CPC 240). Instead of dividing the estate into three shares by following the stock or branches, MPS requires that you drop to the first level where someone is alive. You then give one share to each live person on that level, and a similar share to any dead person who has living issue. Using the scenario described in CPS above, the first level where someone is alive is the level of the children of the decedent. So A, who is living, gets a share, B and C provisionally get a share, and D gets nothing because D is dead with no living issue. You thus divide the estate into thirds on this level.
    You then repeat the process for the provisional share of any deceased person. So B's share drops to the first level where someone is alive (the grandchildren) and you give one share to each live person or deceased person with living heirs.   B had two kids, both alive, so they share B's one-third and get a 1/6 share each. Do the same with C's provisional share.
    Notice that although the method is different from CPS, the result is the same in this case. But now assume that A also predeceased the testator. Under CPS, A's kid gets 1/3, B's kids get 1/6 each, and C's kids get 1/9 each. Thus, the decedent's grandchildren are not treated equally. MPS solves this problem by giving each grandchild an equal 1/6 share in this situation. The reason is that you skip the generation of the children and divide the estate on the level of the grandkids (because this is the first level where someone is alive).

Per capita at each generation (the "UPC method")
    You noticed that the grandchildren of the decedent got different shares under CPS. This is avoided--at least, in some situations--with MPS, but only in situations where you skip a generation because there is no living person on that level. If A had still been alive, MPS would divide the estate into thirds on the level of the children and B's kids would get 1/6, while C's kids get 1/9, just as with CPS.
    PCAEG solves this problem. As with MPS, you drop to the first level where someone is alive. You then give one share to each live person on that level, and a similar (provisional) share to any dead person who leaves living issue. The difference with MPS is that PCAEG then combines the provisional shares assigned to deceased people and puts them into a pot.
    Let's go back to the original scenario where a decedent has four children: A (alive, with one living child), B (deceased with two living children), C (deceased with 3 living children), and D (no descendants). A gets a 1/3 share and D gets nothing, just as in MPS. But the 1/3 shares of B and C are combined and you then repeat the process--drop to the next level where someone is alive. You then give one share to each live person on that level, and a similar share to any dead person who leaves living issue. The next level is that of the grandchildren, and there are five living issue on this level (the children of B and C), who divide the provisional share of B and C equally. The "pot" that B and C provisionally have is 2/3 of the estate. This is the same as 10/15, which is a fraction that can be divided into five as 2/15 each, so each of the five recipients gets a 2/15 share. And the shares are equal.
    Now, wasn't that fun!!!