Washington Wills > Distribution by Right of Representation

Distribution by Right of Representation

1. Washington Wills

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

3. Distribution Per Capita.

Distribution by Right of Representation.

A.  The Principal of Representation.     ñ

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

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

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:

• 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.

  
  

   

  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:

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

  
  

   

  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.

  
  

   

  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.

  
  

   

  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.     ñ

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.

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