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Distribution by Right of Representation

  1. Washington Wills
  2. Examples of Distribution by Right of Representation and Respective Shares.
  3. Distribution Per Capita.

A.  The Principal of Representation. 

This website’s glossary describes “by right of representation” and “issue” as follows:

BY RIGHT OF REPRESENTATION (aka PER STIRPES DISTRIBUTION)
A distribution of property that passes such that any property that would otherwise pass to a predeceased heir or beneficiary is distributed instead to his/her then living issue, equally if in the same generation.  Contrast: PER CAPITA DISTRIBUTION.

ISSUE
The class of individuals descending from a common ancestor, ie, children, grandchildren, great-grandchildren, etc.  Compare: DESCENDANT.

The pertinent statute is RCW 11.02.005(3), which provides as follows:

(3) “Representation” refers to a method of determining distribution in which the takers are in unequal degrees of kinship with respect to the intestate, and is accomplished as follows: After first determining who, of those entitled to share in the estate, are in the nearest degree of kinship, the estate is divided into equal shares, the number of shares being the sum of the number of persons who survive the intestate who are in the nearest degree of kinship and the number of persons in the same degree of kinship who died before the intestate but who left issue surviving the intestate; each share of a deceased person in the nearest degree shall be divided among those of the deceased person’s issue who survive the intestate and have no ancestor then living who is in the line of relationship between them and the intestate, those more remote in degree taking together the share which their ancestor would have taken had he or she survived the intestate. Posthumous children are considered as living at the death of their parent.

B.  Examples of Distribution by Right of Representation and Respective Shares. 

Hypothetical Situation 1:

  1. George Washington, a resident of Washington, makes a testamentary gift in trust for his children and lower issue and directs his Trustee to divide the property “upon the principle of representation for my then living issue.”
  2. George’s family consists of his wife, Martha, and his only children, John and Susan, born of his only marriage.
  3. John has never married or had any children.
  4. Susan married Abraham and had one child, Barbara.

A genealogical chart of George and Martha’s extended family for Hypothetical Situation 1 looks like:

Washington Wills

  • Alternative (a): George dies leaving his two children who take in equal shares:
    • John takes 1/2
    • Susan takes 1/2.
  • Alternative (b): Susan predeceases, then George dies.

    Washington Wills

    Same result as in Alternative (a) but Susan’s child “stand in her shoes” and takes “by right of representation” what Susan would have taken had she been alive:

    • John takes 1/2
    • Susan’s child takes Susan’s 1/2:
      • Barbara takes 1/2

Hypothetical Situation 2:

  1. Same initial situation as Hypothetical Situation 1 above:
    1. George Washington, a resident of Washington, makes a testamentary gift in trust for his children and lower issue and directs his Trustee to divide the property “upon the principle of representation for my then living issue.”
    2. George’s family consists of his wife, Martha, and his only children, John and Susan, born of his only marriage.
    3. John has never married or had any children.
    4. Mary married and had only one child, Barbara.
  2. Years pass, during which time:
    1. Martha predeceases,
    2. George never remarries,
    3. Susan has a second child, a son, Robert
    4. John adopts a son, Gerald, and
    5. Barbara marries and has three children (Tom, Dick, and Harry).

A genealogical chart of George and Martha’s extended family for Hypothetical Situation 2 looks like:

Washington Wills

  • Alternative (c): Susan predeceases, then George dies.

    Washington Wills

    Same result as in Alternative (a) but Susan’s children “stand in her shoes” and take “by right of representation” what Susan would have taken had she been alive:

    • John takes 1/2
    • Susan’s children collectively take Susan’s 1/2 in equal shares:
      • Barbara takes 1/4
      • Robert takes 1/4
  • Alternative (d): Susan and Barbara both predecease, then George dies.

    Washington Wills

    Same result as in Alternative (c) but Barbara’s children “stand in her shoes” and take “by right of representation” what Barbara would have taken had he been alive:

    • John takes 1/2
    • Susan’s children and lower issue collectively take her share: 1/2
      • Robert takes his half of Susan’s share: 1/4
      • Tom, Dick, and Harry collectively take Barbara’s half of Susan’s share: 1/4 in equal shares
        • Each of Tom, Dick, and Harry takes 1/3 of 1/4 = 1/12

          Alternative (e) illustrates one of the peculiarities of Washington law, namely, that Washington law begins counting takers at the closest level of kinship having surviving takers (whether or not by right of representation). Notice that here, as a result of John’s share going to his child and eliminating the last taker at the child level, the shares of the grandchildren increase (from 1/4 to 1/3), as do those of the great-grandchildren (from 1/12 to 1/9).  Such are the vagaries of probate law.

  • Alternative (e): Susan, Barbara, and John all predecease, then George dies.

    Washington Wills

    In Alternative (d), George was survived by a child, John, so there, Washington law begins counting recipients at the child level, with the result that John took half of the estate.  In Alternative (e), George is survived not by a child, but only by grandchildren (and lower issue) — so here, Washington law now begins counting takers at the grandchild level, with the result being three takers (two living grandchildren + one deceased grandchild leaving now living children) at that level by right of representation —

    • Gerald takes 1/3
    • Robert takes 1/3
    • Barbara’s children collectively take her share: 1/3 in equal shares
      • Each of Tom, Dick, and Harry takes 1/3 of 1/3 = 1/9

C.  Distribution Per Capita.

A different method of distribution is “distribution per capita” — meaning that the property is distributed to all the takers in equal shares, regardless of level of kinship.  Had George specified in his Will that his property was to be distributed “to my issue per capita” (the equivalent of “to my issue in equal shares”) then the identity of his issue would be determined under Washington law and be as specified above, but each would take an equal share according to the terms of his Will.