Will Glossary

Per Stirpes

The method of dividing an estate where a class or group of individuals take the share which their deceased ancestor was entitled to (had he or she lived), taking by their right of representing the deceased ancestor (sometimes referred to as taking “by representation”). The opposite of this form of distribution would be per capita distribution.

If there are two or more primary beneficiaries and each has children, it is important to specify in the last will whether the children of each prime beneficiary are simply to take their parent’s share, divided equally among the children of that particular parent, or whether all of the children of all of the deceased prime beneficiaries are to share equally in the combined shares of their deceased parents. The first is known as a per stirpes distribution; the latter is called a per capita distribution.

The following example illustrates how each works: The remainder of the estate is to go to A and B in equal shares and, if either or both die before the testator, then to their children living per stirpes. A and B both die before T. A has one child, C, and B has two, D and E. C gets half of the residue. D and E each get one quarter. If a per capita distribution were called for, then C, D and E would each get one-third.

Per Capita

The method of dividing an intestate estate where an equal share is given to each member of a class or group of individuals, all of whom stand in equal degree of kinship to the decedent. The opposite of this form of distribution would be per stirpes distribution.

If there are two or more primary beneficiaries and each has children, it is important to specify in the last will whether the children of each prime beneficiary are simply to take their parent’s share, divided equally among the children of that particular parent, or whether all of the children of all of the deceased prime beneficiaries are to share equally in the combined shares of their deceased parents. The first is known as a per stirpes distribution; the latter is called a per capita distribution.

The following example illustrates how each works: The remainder of the estate is to go to A and B in equal shares and, if either or both die before the testator, then to their children living per stirpes. A and B both die before T. A has one child, C, and B has two, D and E. C gets half of the residue. D and E each get one quarter. If a per capita distribution were called for, then C, D and E would each get one-third.

What Happens If Someone Dies Without a Last Will in New Jersey?

New Jersey Intestate Succession Laws

Death on or after February 27, 2005

N.J.S. 3B:5-3 Intestate share of decedent’s surviving spouse. The intestate share of the surviving spouse is:

a. The entire intestate estate if:

(1) No descendant or parent of the decedent survives the decedent; or

(2) All of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;

b. The first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;

c. The first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the intestate estate:

(1) If all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decendent; or

(2) If one or more of the decedent’s surviving descendants is not a descendant of the surviving spouse.

N.J.S. 3B:5-4. Intestate shares of heirs other than surviving spouse. Any part of the intestate estate not passing to the decedent’s surviving spouse under N.J.S. 3B:5-3, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:

a. To the decedent’s descendants by representation;

b. If there is no surviving descendants, to the descendant’s parents equally if both survive, or to the surviving parent;

c. If there is no surviving descendants or parent, to the descendants of the decedent’s parents or either of them by representation;

d. If there is no surviving descendant, parent or descendant of a parent, but the decedent is survived by one or more grandparents, half of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent’s maternal relatives in the same manner; but if there is no surviving grandparent, or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half.

e. If there is no surviving descendant, parent, descendant of a parent, or grandparent, but the decedent is survived by one or more descendants of grandparents, the descendants take equally if they are all of the same degree of kinship to the decedent, but if of unequal degree those of more remote degree take by representation.

f. If there are no surviving descendants of grandparents, then the decedent’s step-children or their descendants by representation.

State of New Jersey. If there is no taker under any of the above provisions, the intestate estate passes (escheats) by default to the state of New Jersey.

Death prior to February 27, 2005

If any part of a New Jersey decedent’s estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to varies as follows:

  • If the decedent leaves no surviving issue (e.g., child or grandchild) or parents, the surviving spouse is entitled to the entire intestate estate.
  • If the decedent leaves issue all of whom are also issue of the surviving spouse, the surviving spouse gets the first $50,000, plus one-half of the remaining balance of the intestate estate.
  • If the decedent leaves issue one or more of whom are not also issue of the surviving spouse, the surviving spouse gets one-half of the intestate estate.
  • If the decedent is survived by a parent or parents, but not survived by issue, the surviving spouse is entitled to the first $50,000, plus one-half of the remaining balance of the intestate estate.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes as follows to decedent’s:

          1.Issue, taking equally if they are all of the same degree of kinship to the decedent and, if of unequal degree, taking per stirpes.


          2.Parent or parents equally.

          3.Parents’ issue, per stirpes.


          4.One or more surviving grandparents or the issue of grandparents (e.g., decedent’s aunts and uncles). Half of the estate passes to the paternal grandparents if both survive, or to the surviving paternal grandparent or to the issue of the paternal grandparents if both are deceased, taking per stirpes. The other half passes to the maternal relatives in the same manner. If there is no surviving grandparent or descendants on either the paternal or maternal side, the entire estate passes to the relatives on the other side in the same manner as the half portion would.


          5.Grandparents’ issue, per stirpes.


If there is no taker under any of the above provisions, the intestate estate passes (escheats) by default to the State of New Jersey.