A Question Most Clients Haven't Considered
When I sit down with a couple to plan their estate, one of the first things I ask is to whom they want to divide their assets. Almost universally, the answer is: equally among their children.
Then I ask follow-up questions that change everything: What if one of your children dies before you do? Who gets their share?
Most clients pause. They haven't thought about it. And the answer matters — because depending on how many grandchildren each of your children has, the two available methods can produce dramatically different results.
Those two methods are called per stirpes and per capita at each generation. Utah law has a default. But the default may not be what you would choose.
Meet the Miller Family
To make this concrete, let's follow a fictional Utah couple — Robert and Susan Miller of Provo. They have three children and seven grandchildren:
The Miller Family
Robert and Susan want their estate divided equally among their three children. If all three children outlive them, the result is straightforward — Emily, David, and Michael each receive one-third. Both methods produce the same result when all children survive.
The difference appears only when one or more children die first.
Method One: Per Stirpes ("By the Branch")
Per stirpes is a Latin phrase meaning "by the roots" or "by the branch." Under a per stirpes distribution, each child represents a branch of your family tree. If a child predeceases you, their share of the estate passes down their branch — to their own children — keeping that branch's portion intact.
The size of a grandchild's inheritance depends entirely on which branch they are in. A grandchild in a small branch inherits more than a grandchild in a large branch, because the branch itself — not the individual grandchildren — receives the equal share.
Per Stirpes Example: David Predeceases Robert and Susan
David dies before his parents, leaving his only child Olivia. Emily and Michael are still living.
When only one child predeceases and has only one child, both methods produce the same result. The difference becomes significant when the numbers are more uneven.
Method Two: Per Capita at Each Generation
Per capita at each generation takes a different approach. Under this method, all survivors at the same generational level are treated as individuals rather than branches. If one or more children predecease you, their shares are pooled together and divided equally among all grandchildren at that level — regardless of which child was their parent.
The result is that every grandchild in the same generation receives an identical share.
Utah's default under Utah Code § 75-2-106: When Utah law distributes property by representation to an individual's descendants, it uses per capita at each generation. If your estate plan does not specify otherwise, this is the method that applies.
Where the Two Methods Diverge: A Clearer Example
The real difference appears when multiple children predecease you, and those children have different numbers of their own children. Let's look at a more striking scenario with the Miller family.
Scenario: Both David and Michael Predecease Robert and Susan
David dies, leaving his one child Olivia. Michael also dies, leaving his three children James, Sophia, and Lucas. Emily is still living.
The Miller Family — This Scenario
The contrast is stark. Under per stirpes, Olivia receives one-third of the estate — as much as her aunt Emily — because she is the sole heir of David's branch. James, Sophia, and Lucas each receive only one-ninth, splitting Michael's one-third three ways.
Under per capita at each generation, the two-thirds share belonging to the deceased children's branches is pooled and divided equally among all four grandchildren. Each grandchild receives one-sixth, regardless of which parent was their parent.
Scenario: All Three Children Predecease Robert and Susan
For an even sharper illustration, imagine all three children die before their parents. Emily leaves two children (Lily and Noah), David leaves one child (Olivia), and Michael leaves three children (James, Sophia, and Lucas).
Under per stirpes, Olivia — as the sole grandchild in David's branch — inherits twice as much as her cousins Lily and Noah, and three times as much as James, Sophia, and Lucas. Under per capita at each generation, all six grandchildren receive exactly the same share.
Which Method Is Right for Your Family?
Neither method is objectively better. They reflect different values, and most families have a clear preference once the difference is explained in terms of their own family.
| Consider Per Stirpes if… | Consider Per Capita if… |
|---|---|
| You think of your estate as belonging equally to each child's branch, regardless of how many grandchildren are in it | You want all grandchildren at the same generational level to be treated equally as individuals |
| You want a grandchild who is the only child in their branch to inherit a full share of that branch | You feel it would be unfair for one grandchild to inherit more simply because fewer siblings were born in their branch |
| You have children with very different numbers of children of their own | You have grandchildren with close relationships to each other regardless of which parent they came from |
In my experience, when clients see the side-by-side results for their own family, the right choice becomes clear quickly. The important thing is to make the choice consciously — rather than letting Utah's default make it for you.
Which method reflects your wishes?
This is exactly the kind of question we work through together in a free 30-minute consultation. Bring your family structure and we'll show you what each method would mean for your specific situation.Utah Law's Default: Per Capita at Each Generation
Under Utah Code § 75-2-106, when Utah law distributes property by representation to a person's descendants, it does so using per capita at each generation. This is the default that applies if your estate plan does not specify otherwise.
This means that if Robert and Susan Miller do not have a will or trust Utah law will apply per capita at each generation — pooling the shares of any deceased children and dividing equally among all grandchildren at that level.
Whether that outcome matches your wishes is worth confirming. For some families it does. For others — particularly those who think of each child's branch as deserving an equal portion — per stirpes better reflects their intent.
Either way, the choice should be explicitly stated in your documents, not left to the default.
Frequently Asked Questions
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Per stirpes is Latin for "by the branch." Under a per stirpes distribution, each child represents a branch of your family. If a child predeceases you, their share passes equally to their own children — keeping that branch's share intact regardless of how many grandchildren are in each branch.
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Per capita at each generation is Utah's default distribution method under Utah Code § 75-2-106. If a child predeceases you, their share is pooled with any other deceased children's shares and divided equally among all grandchildren at that generational level — regardless of which child was their parent. Every grandchild at the same generation receives an identical share.
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Utah Code § 75-2-106 establishes per capita at each generation as the default method when property is distributed by representation to a person's descendants. If your estate plan does not specifically address what happens when a child predeceases you, this is the method Utah law applies.
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Neither is objectively better — it depends on your family structure and your values. Per stirpes ensures each child's branch receives an equal portion regardless of how many grandchildren are in it. Per capita at each generation ensures all grandchildren at the same level are treated equally as individuals. Most families have a clear preference once the difference is illustrated with their own family structure. A free consultation is the best way to work through this for your specific situation.
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If all your children survive you, both methods produce identical results — each child receives an equal share. The choice only affects distribution when one or more children predecease you. However, because estate plans are meant to cover unexpected circumstances, specifying your preferred method now — while you are healthy and thinking clearly — ensures your wishes are followed regardless of what happens.