Law of Wills, 2016A

E, will receive her 1/3 share of the estate. C’s two children, F and G, will split her 1/3, so they will
each receive 1/6 of the estate.
Although E, F, G, H, I, and J are all A’s grandchildren, they are treated differently. It is
reasonable that H, I and J not receive anything from the estate because they are yielding to their
mother, D. It is presumed that D will provide for her children, so they are not overly disadvantaged.
Nonetheless, there appears to be no strong justification for permitting E to take a bigger share of
A’s estate than her cousins F and G. Should F and G be penalized because their mother had more
children than B? Do you think this is what A would have wanted? Relying on a survey conducted by
Fellows of the American College of Trust and Estate Counsel, the drafters of the UPC concluded
that A would probably answer the question in the negative. 3 Consequently, the UPC was revised to
adopt the system of representation referred to as per capita at each generation. The revised
provision is set forth below.
UPC § 2-106(b)
(b) [Decedent’s Descendants.] If, under Section 2-103(1), a decedent’s intestate estate or a part
thereof passes “by representation” to the decedent’s descendants, the estate or part thereof is
divided into as many equal shares as there are (i) surviving descendants in the generation nearest to
the decedent which contains one or more surviving descendants and (ii) deceased descendants in the
same generation who left surviving descendants, if any. Each surviving descendant in the nearest
generation is allocated one share. The remaining shares, if any, are combined and then divided in the
same manner among the surviving descendants of the deceased descendants as if the surviving
descendants who were allocated a share and their surviving descendants had predeceased the
decedent.
Under the UPC system, the division of the decedent’s estate first transpires at the level
closest to the decedent where there is at least one living descendant. This step results in the same
distribution that would occur under the Modern per stirpes system. The difference in the two
approaches is the manner in which the decedent’s surviving grandchildren are treated. When the
Modern per stirpes system is applied, those descendants are treated equally. The UPC system
mandates that the shares of deceased persons on the level closest to the decedent be treated as one
pot. The shares in that pot are divided equally among the representatives on the next generational
level.
Example:
Hillary, a widow, had three children, Yvette, Raymond, and Margaret. Yvette had one child, Carmen.
Raymond had two children, Kathleen and Russell. Margaret had one child, Luke. Hillary was
survived by Carmen, Kathleen, Russell, Margaret and Luke.
3
The results indicated that majority of persons surveyed preferred that persons equally related receive equal shares of
their estates. Young, “Meaning of ‘Issue’ and ‘Descendants,’” 13 ACTEC Probate Notes 225 (1988).
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