Why can’t lawyers just use simple English in estate planning?

Estate planning documents are often difficult to read because lawyers have their own vocabulary. Ever come across the words “per stirpes”? It is a Latin phrase that has been used by lawyers for more than a century. It means by the bloodline and refers to a manner of distribution if an identified beneficiary predeceases.

A per stirpial distribution recognizes that the assets go down a bloodline or branch of a family line if a predecessor is not alive at the time of the distribution. For example, if a beneficiary designation specifies to “my descendants who survive me per stirpes” and the designator leaves three children and four grandchildren and all the children of the designator survive, then there would be a 1/3 split of the assets. If, however, one of the children had died leaving two offspring (nee, “issue”), then each of those offspring would split the deceased child’s 1/3 interest – 1/6 each. So far so good.

Let’s change the facts a bit. Say the beneficiary designation says, “To my children who survive me in equal shares,” and one of the designator’s three children had predeceased. Would the surviving children of the deceased child receive 1/6 each? The answer is unfortunately “no” for those grandchildren because the deceased child’s branch or bloodline is excluded as a result of the requirement in the designation that the recipients be surviving children with no reference to “per stirpes.” In other words, the designation, “To my children who survive me in equal shares,” indicates a designator’s intent not to benefit each child’s branch of the family, but just the living children who survive. This is called a “per capita” distribution.

Now let’s make it a bit more confusing. If the beneficiary designation says, “To my three children provided that, if either of them predeceases me, then to ‘my grandchildren, per stirpes.’” At the time of the designator’s death, she had two living children and four grandchildren. Do the two grandchildren of the deceased child take the deceased child’s share or do all four grandchildren take that deceased child’s share?

Glad you asked. The North Carolina Court of Appeals decided in the case of Brawley v. Sherrill filed on September 3, 2019 (Iredell County, No. 17 CVS 1941) construing language in a will that “the predeceased beneficiary’s share must be distributed amongst all of Testatrix’s grandchildren, with the percentages varying based not upon the total headcount of surviving grandchildren (per capita), but upon the root from which the particular grandchild descends (per stirpes).”

Words do matter, especially when it comes to estate planning and designating beneficiaries. The ultimate goal is to have a legally effective designation consistent with the goals of the designator. To achieve that, care must be taken in the designation especially if the beneficiaries are to receive a specific dollar amount or percentage of the asset. Expensive and time-consuming litigation to determine the meaning of words definitely thwarts the designator’s intent to have a clear and efficient distribution scheme. A properly drafted estate planning document is the best way to avoid that conflict, expense, and confusion.