Per Stirpes in Virginia Wills and Trusts Explained

What Happened

A recent article from a Virginia estate planning law firm breaks down one of the most commonly misunderstood terms in estate planning documents: per stirpes. The piece explains what this Latin phrase means, how Virginia applies it, and why the distinction between per stirpes and per capita distribution matters enormously for families with children and grandchildren.

The article walks through a practical example using a fictional grandmother with three children, one of whom predeceases her. Under a per stirpes distribution, the deceased child's share passes down to that child's own children, preserving the original family branch structure. Under a per capita distribution, every living descendant receives an equal share regardless of which branch of the family they belong to, which can produce results that feel inequitable to many families.

The piece also addresses a nuance specific to Virginia: the state applies what attorneys call "Modern Per Stirpes," sometimes referred to as "per capita with representation." Under this approach, shares divide at the first generational level where at least one person is still living. If an entire generation predeceases the testator, the next generation divides the estate equally among themselves, giving every surviving grandchild an equal starting point rather than inheriting unequal fractions tied to their parent's original share.

What It Means

For Virginia families, the per stirpes question is not abstract. Virginia's intestate succession law already uses a per stirpes framework as its default rule. Under that framework, Per capita with representationVa. Code § 64.2-202Verified Sep 10, 2026View source distribution governs how assets flow when someone dies without a will. The survival requirement also plays a role: a beneficiary must survive the decedent by 120 hoursVa. Code § 64.2-2201Verified Sep 10, 2026View source to inherit under intestate succession. These defaults protect grandchildren in many situations, but they only apply when no will or trust exists. Once a person creates a will or revocable trust, the document's specific language controls, and that language may or may not include a per stirpes designation.

This is where the stakes get real. A will that simply says "I leave everything to my children" without specifying per stirpes creates ambiguity. Courts in many states, including Virginia, may interpret that language to mean only the children who survive the testator receive anything. A child who predeceases the testator could effectively cause their own children to be cut out of the inheritance entirely. Virginia's anti-lapse statute provides some protection in certain circumstances, but it does not cover every scenario and does not eliminate the need for clear drafting. Explicit per stirpes language removes the ambiguity and ensures that each branch of the family receives its intended share regardless of who dies first. The same logic applies to revocable living trusts, which operate outside of probate but still require precise distribution language to function as intended. Families who use a trust to avoid probate benefit from per stirpes language just as much as those relying on a will.

The per stirpes question also intersects with Virginia's broader probate landscape. Virginia does not follow the Uniform Probate Code, and independent administration is not available in the state. A typical estate passes through a process lasting 9 months to 12 months, with creditors holding 6 monthsVa. Code §§ 64.2-554, 64.2-556(A) (six months from qualification before distribution may be compelled or ordered over creditors), 64.2-508.1(C)(4) (elective published notice: claims due at least six months from first publication); § 64.2-529 (separate 12-month personal-liability shield for the personal representative); § 64.2-550 (debts-and-demands hearing before the commissioner of accounts)Verified Sep 9, 2026View source to file claims against the estate. Virginia requires a surety bond for executors, though a will can waive this requirement. Attorney fees run on a reasonable compensationVa. Code §§ 64.2-105(B)(12) (fiduciary employs and compensates counsel), 64.2-1208(A) (commissioner of accounts allows reasonable expenses; no statutory percentage)Verified Sep 9, 2026View source standard, typically ranging from 2.5%Va. Code §§ 64.2-105(B)(12) (fiduciary employs and compensates counsel), 64.2-1208(A) (commissioner of accounts allows reasonable expenses; no statutory percentage)Verified Sep 9, 2026View source to 3.9%Va. Code §§ 64.2-105(B)(12) (fiduciary employs and compensates counsel), 64.2-1208(A) (commissioner of accounts allows reasonable expenses; no statutory percentage)Verified Sep 9, 2026View source of the estate's value. When distribution language is unclear, disputes over who inherits what can extend that timeline significantly and drive up costs for everyone involved. Clear per stirpes language in a well-drafted will or trust reduces the likelihood of those disputes arising in the first place.

Context from SimplyTrust

Understanding per stirpes is one piece of a larger estate planning picture. Virginia families who want to ensure their assets flow intentionally through their family tree benefit from documents that address distribution explicitly. SimplyTrust's platform allows users to configure distribution schedules and designate beneficiaries with the specificity that prevents the ambiguities described above. The platform also supports pour-over wills, which work alongside a revocable trust to capture any assets that were not transferred into the trust before death, ensuring those assets follow the same distribution instructions. Families navigating these decisions can find a helpful starting point in the Glossary of Basic Estate Planning Terms, which explains concepts like per stirpes, beneficiaries, and intestate succession in plain language.

For Virginia residents wondering whether their existing documents address per stirpes correctly, or whether a trust makes more sense than a will for their family structure, the Trust vs. Will comparison on SimplyTrust offers a clear breakdown of how each document type handles distribution. Families with minor children, blended family situations, or multiple generations of potential beneficiaries benefit most from reviewing their distribution language carefully. Virginia also recognizes transfer-on-death deeds, which allow real property to pass directly to named beneficiaries outside of probate, adding another layer of planning flexibility for homeowners. Virginia imposes no state estate or inheritance tax, meaning families can focus their planning on distribution structure and probate avoidance rather than state-level tax minimization.

Source: What Is Per Stirpes in a Will? A Virginia Estate Planning Attorney Breaks It Down