Per Stirpes UK (2026): What It Means and How It Works in a Will
Updated 13 May 2026 · 7 min read · England & Wales
Per stirpes (Latin: “by the branch”) is a rule of inheritance that determines how a gift passes when a beneficiary dies before the testator. Instead of lapsing or being split between other beneficiaries, the gift flows down to the predeceasing beneficiary’s own children. Understanding per stirpes is essential for anyone drafting or reviewing a will with multiple generations of beneficiaries.
Per stirpes in action — an example
A testator leaves their estate equally to three children: A, B, and C. Child B dies before the testator, leaving two children of their own (grandchildren X and Y).
| Beneficiary | Per stirpes (B’s share passes to B’s children) | Per capita (surviving beneficiaries only) |
|---|---|---|
| A | 1/3 of estate | 1/2 of estate |
| B (predeceased) | B’s 1/3 passes to B’s children | B’s share redistributed to A and C |
| X (B’s child) | 1/6 of estate (half of B’s share) | Nothing |
| Y (B’s child) | 1/6 of estate (half of B’s share) | Nothing |
| C | 1/3 of estate | 1/2 of estate |
Per stirpes keeps the gift within the predeceasing beneficiary’s family line. Per capita concentrates the estate among the survivors.
The statutory rule: s33 Wills Act 1837
English law includes a statutory anti-lapse rule in s33 of the Wills Act 1837 (as amended). This rule applies automatically to gifts to the testator’s own children and remoter descendants — but not to gifts to other beneficiaries:
- If a child of the testator predeceases leaving issue who survive the testator, the gift does not lapse — it passes to that issue as if the child had died immediately after the testator
- This is effectively a per stirpes rule, but limited to the testator’s own descendants
- For gifts to siblings, cousins, friends, or other non-descendants: s33 does not apply — the gift lapses without an express substitution clause
Best practice is always to include an express substitution clause rather than relying on s33, so the testator’s intention is unambiguous on the face of the will.
How to include per stirpes in a will
A per stirpes substitution clause for a residuary gift might read:
The clause should specify:
- Whether substitution applies to children only or to all descendants
- Whether substitute beneficiaries must survive the testator
- What happens if the predeceasing beneficiary left no descendants (gift to surviving beneficiaries, or a long-stop charity)
Frequently asked questions
What does per stirpes mean in a will?
Per stirpes is Latin for 'by the branch' or 'by the root'. In will drafting, it is a method of distributing an estate gift so that if a named beneficiary dies before the testator, the deceased beneficiary's share passes to their own descendants (children, then grandchildren) rather than lapsing or being divided among the surviving beneficiaries. Example: a testator leaves their estate equally to three children (A, B, and C). Child B dies before the testator, leaving two children of their own (grandchildren X and Y). Under per stirpes distribution, X and Y together receive B's one-third share — each gets one-sixth of the estate. A and C each keep their one-third. The gift passes 'through the branch' of the predeceased beneficiary rather than lapsing.
What is the difference between per stirpes and per capita?
Per stirpes and per capita are two different methods of distribution when beneficiaries predecease the testator: Per stirpes ('by the branch'): the deceased beneficiary's share passes to their descendants. The number of shares is fixed at the top level; each surviving branch takes its original share regardless of how many individuals are in each branch. Per capita ('by the head'): the estate is divided equally among all surviving individuals at the same level (or sometimes across all levels). If a beneficiary predeceases, their share is redistributed equally among the remaining surviving beneficiaries, not to the predeceasing beneficiary's children. Example: A, B, and C are named as equal beneficiaries. B predeceases leaving X and Y (children). Per stirpes: A = 1/3; X = 1/6; Y = 1/6; C = 1/3. Per capita (surviving beneficiaries only): A = 1/2; C = 1/2; X and Y receive nothing.
Is per stirpes the default in English wills?
No — per stirpes is not automatically the default in English law. The default rule in English law is the anti-lapse rule: if a gift to a child of the testator lapses (because the child predeceases the testator), the Wills Act 1837 s33 provides that the gift passes to the child's issue (descendants) if they left any surviving them who are still living at the testator's death. This is effectively a per stirpes rule, but it applies only to gifts to the testator's children (and remoter descendants) — not to gifts to other relatives or unrelated beneficiaries. For gifts to other beneficiaries (siblings, friends, cousins), a predeceasing beneficiary's share simply lapses and falls into the residuary estate unless the will expressly provides otherwise. To achieve per stirpes distribution for all beneficiaries, the will must expressly state it.
How is per stirpes expressed in an English will?
Per stirpes is expressed in a will by including a substitution clause alongside the gift. Common drafting forms: (1) 'I give my residuary estate to such of A, B, and C as survive me in equal shares, but if any of them should predecease me leaving children or remoter descendants who survive me, such children or remoter descendants shall take equally between them the share their parent would have taken.' (2) 'I give [the gift] to my children in equal shares absolutely, and if any of them shall predecease me their share shall pass to their children in equal shares per stirpes.' (3) 'To be divided per stirpes among my descendants' — though this shorthand is best avoided in formal English wills without a clear definition clause. The substitution clause should specify: how many generations deep the substitution goes; whether it applies to 'children' only or 'children and remoter descendants'; whether the substitute beneficiaries must survive the testator; and what happens if there are no issue of the predeceasing beneficiary.
What happens if there is no per stirpes clause and a beneficiary predeceases?
Without a substitution clause: (1) For gifts to the testator's own children and remoter descendants: s33 Wills Act 1837 applies the statutory anti-lapse rule — the gift automatically passes to the predeceasing beneficiary's issue if they left any (effectively per stirpes for this class only). (2) For all other beneficiaries (siblings, friends, cousins, non-relatives): the gift lapses and falls into the residuary estate. If the residuary estate itself lapses (e.g. the sole residuary beneficiary also predeceases), that portion may pass under the intestacy rules — even though a will exists for the rest of the estate. This is called a partial intestacy. Well-drafted wills always include substitution clauses and a long-stop charitable residuary clause to prevent partial intestacy.
Can per stirpes apply to specific legacies as well as residue?
Yes — per stirpes substitution clauses can be attached to any gift, whether a specific legacy ('I give my house to A, but if A predeceases me, to A's children equally per stirpes'), a pecuniary legacy ('I give £10,000 to B, but if B predeceases me leaving issue, to such issue in equal shares per stirpes'), or the residuary estate. Specific legacies without a substitution clause are subject to the same rules: for the testator's own children, s33 Wills Act 1837 may apply automatically; for other beneficiaries, the legacy lapses without an express clause. The most important location for a per stirpes clause is the residuary gift — this is where lapse causes the most serious consequences (partial intestacy).
Per stirpes vs the statutory s33 rule — what is the difference?
Section 33 Wills Act 1837 (as amended by the Administration of Justice Act 1982) provides a statutory anti-lapse rule for gifts to the testator's children and remoter descendants: if a child of the testator predeceases the testator leaving issue who survive the testator, the gift does not lapse but passes to that issue as if the child had died immediately after the testator. This is effectively a per stirpes rule for one generation — it applies to gifts to children (and grandchildren etc.) of the testator. Key difference from an express per stirpes clause: s33 only applies to the testator's own descendants; an express substitution clause in the will can extend per stirpes to any class of beneficiary. s33 is also a blunt instrument — the will can expressly override it (e.g. 'if any child predeceases me their share shall not pass to their children but shall accrue to the surviving beneficiaries'). Best practice is always to include an express substitution clause so the testator's intention is clear on the face of the will.
Make sure your gifts reach the right people
A substitution clause ensures your estate stays in the family if a beneficiary dies before you — and avoids the expense of partial intestacy. WillSafe’s will kit includes clear guidance on per stirpes and substitution drafting.
Get the Will Kit →Related guides
- What happens if a beneficiary predeceases the testator?
- What is a residuary estate?
- Specific legacy — types of legacy and what happens when they fail
- Bona vacantia — when an estate passes to the Crown
- Intestacy rules UK 2026