Order of Succession for Wills

by A.L. Kennedy
The order of succession for wills is used if a beneficiary is deceased.

The order of succession for wills is used if a beneficiary is deceased.

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Wills can be used to leave property to children and/or other relatives after the testator's -- the person writing the will -- dies. If a beneficiary named in a will dies before the testator, the property that he was to receive from the will may go to his own heirs. The order of succession for wills determines what and how much the testator's heirs receive.

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Per Stirpes

A will may specify that the testator's property be given in equal shares to his beneficiaries. This is legally known as "per stirpes," sometimes also referred to as taking "by right of representation." In this case, the order of succession distributes the property a deceased beneficiary would have received by dividing it up among that beneficiary's living heirs. For instance, if the testator leaves his property in equal shares to his three children, and if one of these children, who has two kids of his own, dies before the testator does, that child's two children split their parent's share -- which is one-third, since there are three children -- and receive one-sixth of the estate each.

Per Capita to Descendents

In a "per capita" situation, everyone named in the will receives an equal part of the estate instead of merely receiving the portion granted to the "top level" of beneficiaries. For instance, if a testator's will leaves his estate in equal shares per capita to his descendants, and the testator has three children, but one has died, leaving two grandchildren, the two living children and two living grandchildren would each receive one-fourth of the estate.

Per Capita to Children

In large families, the testator may wish to leave his property per capita to his children in order to prevent the estate from being divided up into a large number of shares, according to attorney Joel A. Schoenmeyer. For instance, if the testator has three children, but one dies before the testator, leaving behind two grandchildren, the estate is distributed per capita to the testator's children, with each child receiving half of the estate. The grandchildren receive nothing, because their parent is dead and therefore cannot receive anything from the estate.

Contingent Beneficiaries

One way to prevent the order of succession for wills from leaving your property to people you didn't intend is to name contingent beneficiaries in your will, according to the American Bar Association. A contingent beneficiary is someone who receives the share given to your named beneficiary if the named beneficiary dies before you do. An attorney who practices estate law in your state can help you set up your will so that those you wish to leave property to will receive it, even if someone dies before you do.