by representationn.
Reviewed by Owen Hathaway, AttorneyUpdated June 1, 2026Which descendants inherit, and how much, can hinge on whether a will or trust says “by representation,” “per stirpes,” or “per capita at each generation,” three phrases that look interchangeable but can split the same estate very differently. Under “by representation,” the estate is divided at the nearest generation with a living member, and a deceased person's share then passes down their own branch of the family to their descendants, who “represent” the relative who died.
“By representation” (also called per capita with representation, or modern per stirpes) is a method for dividing property among a person's descendants when one or more of them has died before the distribution date. The property is divided into equal shares at the nearest generation that contains a living member, counting both the living descendants at that level and the deceased descendants who left descendants of their own. Each living member takes one share, and the share of each deceased member passes down to that member's own descendants.
The label captures the idea that a deceased relative's descendants stand in his or her shoes, representing that relative and take the share he or she would have received. This differs from per capita at each generation, which instead pools the shares of all deceased members at a level and divides them equally among the next generation, so that equally related cousins receive equal amounts. It also differs from strict per stirpes, which always begins the division at the children's generation even when no child is living. Because the same estate can be split quite differently under each method, the chosen method should be stated expressly in a will or trust.
Colorado, a Uniform Probate Code state, makes per capita at each generation its intestacy default; it governs the shares of intestate heirs (C.R.S. § 15-11-106) and is defined as a rule of construction for wills and trusts at C.R.S. § 15-11-709(2). It should not be confused with “by representation” (§ 15-11-709(5)), which keeps a deceased descendant's share within that person's own branch rather than pooling it. Wyoming has not adopted the UPC. Under Wyo. Stat. § 2-4-101, Wyoming follows strict per stirpes: the division point is fixed at the children's generation, and descendants of a predeceased child collectively inherit the share their parent would have taken if living. So identical language can distribute an estate differently depending on which state's law controls.
Related terms
- intestacyWhat happens when someone dies without a valid will: state law, not the person, decides who inherits.
- per capita at each generationWhether grandchildren inherit equally with their cousins or in different amounts can turn on which of three look-alike phrases a will or trust uses: “per capita at each generation,” “by representation,” or “per stirpes.” Under per capita at each generation, the estate is divided into equal shares at the nearest generation with a living member, and the shares of those who died first are pooled and split equally among the next generation, so descendants equally related to the deceased receive equal amounts.
- per stirpesHow an inheritance is split among descendants when some have died first can turn on whether a will or trust says “per stirpes,” “by representation,” or “per capita at each generation,” three phrases that look interchangeable but can divide the same estate very differently. Under strict per stirpes, the estate is always split into equal shares at the children's generation, one share per child, and a deceased child's share drops straight down that child's branch of the family, even if no child is still living.
- willA signed, witnessed document that says who gets a person's probate property after death and names an executor to carry it out. It takes effect only at death and only after probate.
- beneficiary designationAn instruction on an account or policy naming who receives it at death. It passes outside probate and overrides what a will says.