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Wills

17 posts in this topic

I am executor of my mother's estate, there is something in it that I do not understand.  What is the meaning of "without stirrups". Or "with stirrups"? I live in NY state, more m lives in Florida.

Edited by panda
Wanted to add that I live in different state from my mother. Her is will is a Florida drawn will.

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"Per stirpes" means "through representation."  That means the descendants of a deceased heir divide their ancestor's share of an inheritance equally among themselves.  The alternative would be "per capita".  Although "per stirpes" is a Latin phrase an Italian client of mine said the term is still used in modern Italian.

 

For example: A deceased person, Able, had two children, Baker and Charlie.  Baker died before Able, leaving three children, Doris, Edith and Fred.  Able's will leaves his estate to his surviving descendants (or issue) in equal shares per stirpes.  Baker would get one half of the estate and each of the grandchildren would receive one-sixth of the estate.  If any of the grandchildren also predeceased Able, their chidren would divide up their parent's share.

 

If Able's will left his estate to his descendants in equal shares per capita, Baker and the grandchildren would each get one fourth of the estate.  

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Ok so it says equal shares per capita. My brother deceased, who was one heir.  He had a daughter, does she get any part of my brother's inheritance 

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It depends on the full text of the legacy.  If the will says, for instance, "I leave my estate to my surviving children in equal shares per capita." the grandchild would not be entitled to anything because she is not a "surviving child."  Why don't you quote the full text of the will's bequest?

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"I give all of my property and estate in equal share to the following who survive me per capita and not per stirpes"

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What that appears to mean is that if one of the named or designated people does not survive the testator their descendants do not get any share of the estate.

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Ok. Since my brother died this February and he is named as one of the heirs in Mom's will. Just checking.  I don't want any problems, when Mom passes.  I am the executor as well as a surviving heir.

 

do I get compensation as executor as well as an heir 

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I haven't seen the will and it is not effective now anyway.  The will can be changed anytime before your mother's death so it doesn't make any sense to worry about it now.  Normally an executor is entitled to compensation as well as inheritance but it would depend on the will and may be limited by local practice.  If you take a commission for acting as executor it would be ordinary income subject to income taxation and require you to file a 1099 with the IRS.  Inheritance is not subject to taxation unless the estate is over about $5.5 million. 

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I would respectfully disagree with RetiredVA, but in the end it will depend upon how the state law interprets it where you mother lives when she dies.  If you leave property per capita to two individuals, then it is divided in 1/2 when you die.  If one predeceases the other, but has two children then you get 1/3 and each child gets 1/3.  The confusing language is I leave it to the following who survive me,  A & B per capita.  Retired interpretation is that in order to inherit, they must survive the testator, otherwise their decendents get nothing and the clause would come into effect only if A died after the testator, but before the property was distributed.  Some states would interpret it literally others may ignore the survive me provision and distribute it to A and the heirs of B. When the time comes, get the opinion of an attorney in the state where they lived at the time of their death to be safe.

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If the will specifically says "per capita and not per stirpes" I doubt any court would say the "and not per stirpes" is not relevant.

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Not the per stirpes part, but the surviving part.  If there were 2 children and one had two children and one had three.  Per stirpes would mean the the the benefit would be divided in 2 parts with the 1/2 share would be divided among the two children and 1/2 among the 3 children.  Per capita would mean that the benefit would be divided in five equal parts and distributed.

All I was saying is that I wasn't sure if the survivor requirement would cut off the children of the one who predeceased.  Which is what I read your answer to say.

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I think the others have covered the per stirpes and per capita issue.  Have you actually been appointed by a court as executor?  Or are you merely nominated in the will to be executor?

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