California's Three Rules of Succession: Sections 240, 246, and 247

Jurisdiction: California
Primary Statutes: Cal. Prob. Code § 240 (intestate default); § 245 (triggering provision for instruments); § 246 (per stirpes); § 247 (per capita at each generation)
Key Cases: None controlling
Last Reviewed: March 2026
Category: Estate Planning — Succession and Distribution

Executive Summary

When a California decedent leaves property to “issue” or “descendants” and some of those beneficiaries have already died, three different statutory rules determine who receives what — and in what proportions. Section 240 is the default for intestate succession and governs most wills and trusts when the drafter makes no express choice. Section 246 (“per stirpes”) always anchors the initial share count at the children’s level regardless of whether any children survived. Section 247 (“per capita at each generation”) uses the same starting methodology as § 240 but pools all undistributed shares before each round of redistribution, producing equal shares for all living members at the same generational depth. The rules produce identical results when all of the donor’s children survive. The differences emerge — and compound — only when intermediate-generation members have predeceased the donor with unequal numbers of surviving issue in each branch.

Governing Law

§ 240 — The Intestate Default

Section 240 governs intestate succession and, by operation of § 245(a), is also the default for any will, trust, or other instrument that provides for issue or descendants to take without specifying the manner of distribution. Section 245(b) further provides that contradictory language such as “per capita and per stirpes” or “equally and by right of representation” does not constitute an expression of contrary intention — such language defaults to § 240.

Operative text (§ 240): “the property shall be divided into as many equal shares as there are living members of the nearest generation of issue then living and deceased members of that generation who leave issue then living, each living member of the nearest generation of issue then living receiving one share and the share of each deceased member of that generation who leaves issue then living being divided in the same manner among his or her then living issue.”

The redistribution clause is branch-specific: each deceased member’s undistributed share is divided among “his or her then living issue” — not pooled with other undistributed shares. The algorithm restarts independently within each branch.

§ 246 — Per Stirpes

Section 246 applies when a will, trust, or other instrument expressly references it by section number, or uses “per stirpes,” “by representation,” or “by right of representation” (§ 246(b)). Its defining feature is the starting point: the initial division always occurs at the children’s generation, regardless of whether any children are alive. Each living child takes one share; each deceased child who left surviving issue accounts for one share, which then flows down within that child’s branch by the same method.

§ 247 — Per Capita at Each Generation

Section 247 applies when a will, trust, or other instrument expressly references it by section number, or uses “per capita at each generation” in instruments executed on or after January 1, 1986 (§ 247(b)). The starting-point methodology matches § 240: find the nearest generation with any living or issue-leaving members, divide into shares at that level. The redistribution mechanism is fundamentally different.

Operative text (§ 247): “the remaining shares, if any, are combined and then divided and allocated in the same manner among the remaining issue as if the issue already allocated a share and their descendants were then deceased.”

Undistributed shares are explicitly combined into a single pool before redistribution. The algorithm then re-applies to all remaining issue collectively — across all branches simultaneously — excluding those who already received shares and their descendants. All members at the same generational depth compete equally for the pooled remainder.

Key Legal Distinctions

Comparison of the Three Schemes

The Illustrative Family Tree

The following example is adapted from the California Law Revision Commission’s Recommendation Proposing the New Probate Code (December 1989, Pub. No. 165). All three children of the Donor have predeceased. Child 1 (C-1) left no issue. Child 2 (C-2) had one child (GC-1, living), who has one child (GGC-1, living). Child 3 (C-3) had three children: GC-2 (living), GC-3 (predeceased), and GC-4 (predeceased). GC-3 had two predeceased children — GGC-2 (who left two living children, GGGC-1 and GGGC-2) and GGC-3 (who left one living child, GGGC-3). GC-4 had one living child, GGC-4.

Distribution Table

Recipients in bold are living and take a share under the applicable rule. Deceased members in italics pass their undistributed share to their issue. GGC-1 is living but receives zero under all three rules because GC-1, the parent, is alive.

Legend:

• ◆ § 246 diverges — § 246 anchors the initial count at the children’s generation (C-1, C-2, C-3), not the grandchild generation. GC-1 receives C-2’s entire half-share as sole heir of that branch. GC-2 and the GGGC take correspondingly smaller shares.
• ★ § 240 sole-branch windfall — GGC-4 is the only living member in GC-4’s branch. Under § 240, the branch-by-branch mechanism awards GGC-4 all of GC-4’s 1/4 share. Under § 247, GC-3’s and GC-4’s shares are pooled first, so GGC-4 competes equally with GGC-2 and GGC-3 and receives only 1/6.
• ◇ § 247 generation-equalization — the pooled 1/2 (GC-3’s and GC-4’s shares combined) is divided equally among all three GGC-level claimants. GGGC-1, GGGC-2, and GGGC-3 each receive 1/9. Under § 240, the GGGC also receive equal shares — but only 1/12 each, because GGC-4 has already absorbed 1/4 of the estate.

Source: Cal. Law Revision Comm’n, Recommendation Proposing the New Probate Code, Pub. No. 165 (Dec. 1989).

The Critical Divergence: GGC-4 Under §§ 240 and 247

The starkest single difference in the table is GGC-4: one-quarter under § 240 versus one-sixth under § 247. This one cell encapsulates the structural difference between the two rules.

Under § 240, redistribution at the GGC level proceeds branch by branch. GC-3’s one-quarter stays within GC-3’s branch; GC-4’s one-quarter stays within GC-4’s branch. GGC-4 is GC-4’s only child, so GGC-4 receives GC-4’s entire one-quarter. The number of children in GC-3’s branch is irrelevant.

Under § 247, GC-3’s one-quarter and GC-4’s one-quarter are combined into a pool of one-half before redistribution. That pool is divided equally among all three GGC-level claimants — GGC-2, GGC-3, and GGC-4 — each receiving one-sixth. GGC-4’s share is reduced precisely because the pooling mechanism eliminates the branch-size windfall. The rule treats all members at the same generational depth as equal competitors for the undistributed pool, regardless of branch composition.

⚠️ CRITICAL DISTINCTION: Sections 240 and 247 use the same starting-point methodology and produce identical results at the grandchild level. The divergence arises entirely from the redistribution mechanism. A drafter who intends generation-equalization and uses § 240’s language — or no language at all — will achieve results equivalent to § 247 only in the one case where the donor’s branches have identical numbers of issue at every level. In a real multi-generational family, that case is the exception, not the rule.

Triggering Language: The § 245 Gateway

⚠️ CRITICAL ISSUE: Section 245(b) provides that contradictory language such as “per capita and per stirpes” or “equally and by right of representation” does not constitute an expression of contrary intention — it triggers the § 240 default. Instruments using such language intending to achieve § 247 generation-equalization will fail to do so. The only reliable way to invoke § 247 is an explicit reference to “the manner provided in Section 247 of the Probate Code” or the phrase “per capita at each generation.”

📌 PLANNING NOTE: “By representation” is assigned by § 246(b) exclusively to per stirpes — not § 240, and not § 247. Despite the intuitive reading that “by representation” describes any scheme in which descendants represent their predeceased ancestors, the statute makes it a § 246 trigger. Practitioners who intend § 240 or § 247 must not use this phrase.

Practice Notes

Drafting Checklist

• Confirm the instrument contains an explicit triggering phrase for the intended distribution scheme. Silence or contradictory language (including “per capita” without “at each generation,” or hybrid phrases such as “per capita and per stirpes”) defaults to § 240 per § 245(b).
• For clients who want all same-generation descendants treated equally regardless of branch structure, use § 247 language: “in the manner provided in Section 247 of the Probate Code” or “per capita at each generation.” Reference the section number explicitly to avoid § 245(b) default.
• For clients who want each child’s line of descent to carry a fixed proportionate share from the first generation down, use § 246 language: “in the manner provided in Section 246 of the Probate Code” or “per stirpes.”
• Do not use “by representation” if § 240 or § 247 is intended. Section 246(b) assigns that phrase exclusively to per stirpes.
• Walk clients with unequal family branches through the distribution table — or a version tailored to their actual family tree — before finalizing language. The difference between § 240 and § 247 is invisible when all children survive; it becomes decisive when they do not.
• Review existing instruments using “per capita and per stirpes,” “equally and by right of representation,” or “by representation” alone. Each expression has a specific and potentially unintended statutory meaning under §§ 245(b) and 246(b).

Multi-Generational Trusts

In instruments with a long distribution horizon, consider attaching a schedule to the instrument or the client file showing the intended distribution applied to the actual family tree at execution. The schedule does not control interpretation — the operative language does — but it contemporaneously documents the client’s intent and can be decisive if the instrument is contested after multiple generations have passed.

This article is provided for educational purposes and reflects California law as of March 2026. It does not constitute legal advice. Readers should verify current statutory text and consult qualified counsel for specific matters.