Chapter D. Representation

JurisdictionWashington

D. REPRESENTATION

When the potential taker for a share of an estate within a group such as "issue of parents"34 has predeceased the intestate, a determination must be made as to the distribution of that share. The intestacy statute requires distribution "by right of representation," which in turn has been construed to define the takers' rights as "per stirpes."35 Generally, "per stirpes" describes a method of taking whereby the issue "represent," or take in place of, their deceased ancestors up through the family to the "stock" or "root" generation.36

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Although in some jurisdictions the first division into roots is made at the generation nearest the common ancestor, regardless of whether there are living members of that generation,37 under the Washington statute the so-called roots do not begin until the level is reached at which there are issue still living.38 Consider the following illustration, in which the group taking "by right of representation" is the "issue of the intestate's parents":

The estate is divided into three parts, allocated equally to C-1, C-2, and the deceased C-3. C-4, who left no surviving issue, is not allocated a share. The one-third share that would have gone to C-3 does not pass through his or her estate.39 Instead it passes to the surviving issue of C-3, with those issue who are in equal degree (GC-2 and GC-4) taking equally and those issue in a more remote

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degree taking by further representation.40 C-3's share thus is divided among C-3's surviving issue into the same number of shares as there are issue in the nearest degree who are surviving (GC-2 and GC-4) or who are deceased with issue surviving (GC-3, who predeceased leaving issue surviving [GGC-1 and GGC-2]). Therefore, GC-2 and GC-4 will each take one-third of the share of C-3 (one-ninth of the total estate), and GGC-1 and GGC-2 will each take one-half of the remaining one-third of C-3's share (one-eighteenth of the total). There is no representation of a surviving taker at any level, so GC-1 and GGC-3 will not take.41 Not only is there no share allocated to a predeceased descendant who has left no surviving issue (C-4), but there is no one who can represent that descendant, even if he or she has left a surviving spouse or a will naming beneficiaries of the descendant's own estate. "Issue" are the only representatives defined by statute.42

The fact that Washington's "modified" system of representation considers the stock generation to...

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