Estate Planning for Minor Children in Ontario: Guardianship, Trusts, and Who Gets What

The single most important reason young parents make a will is to protect their minor children. Estate planning for minor children in Ontario involves two distinct questions that most people conflate: who will care for your children (guardianship), and who will manage their money (the trustee of a children's trust). Getting both right — in writing — is essential, because if you die without a will, neither decision is yours to make.

What Happens If You Die Without a Will?

If you die intestate (without a will) while your children are minors:

• A court appoints a guardian of the person, not necessarily the person you would have chosen. The other parent typically has priority, but if they are also deceased or unsuitable, the court decides among other applicants.
• Your children's inheritance is paid into the Office of the Public Guardian and Trustee (OPGT), a government office, until each child turns 18. At 18, each child receives their share outright — in a lump sum, with no restrictions on how they spend it.
• No trust exists to manage money flexibly for your children's benefit during their childhood.

Most parents want something very different from this outcome.

Naming a Guardian of the Person

Your will can name a "guardian of the person" for your minor children — the person who will raise them if both parents are deceased. A few key points:

• It is a nomination, not a binding appointment. Ontario's Children's Law Reform Act gives courts final authority. Your nomination carries significant weight, but a court can deviate if it concludes the nominee is not in the children's best interests.
• Name an alternate. Your first choice may predecease you or be unable to serve. Name a backup.
• Talk to the person first. Surprising someone with this responsibility in a will is unfair to them and to your children.
• Consider practical factors: geographic location (will your children need to move?), parenting style, age and health of the guardian, relationship with your children, and whether the guardian is willing.

If both parents are alive and have equal parenting rights, guardianship typically passes to the surviving parent automatically — the will provision only becomes relevant if both parents are deceased.

Children's Trusts: The Financial Side

Rather than letting your children's inheritance flow to the OPGT or be handed over at 18, your will can create a children's trust managed by a trustee you appoint.

What the trust does

• Holds your children's inheritance during their minority (and potentially longer).
• Allows the trustee to use funds for the children's benefit: education, housing, clothing, activities, medical expenses.
• Releases funds to each child at an age or milestone you specify.

Choosing the distribution age

Most parents do not want their children receiving a large lump sum at 18. Common alternatives:

• One-third at 21, one-third at 25, one-third at 30.
• A full distribution at 25 or 30.
• Staged based on milestones (completing post-secondary education, etc.).
• Pure trustee discretion until a certain age.

There is no single right answer — it depends on the amount involved and your sense of your children's maturity. The key point is that you decide, not the law.

Trustee vs. guardian: often different people

Many parents assume the guardian and the trustee should be the same person. Sometimes they are — but not always. The guardian provides day-to-day care; the trustee manages significant financial assets. Separating roles can be a check on each other and may reduce conflicts of interest. A trustee who is not the guardian cannot be tempted to use the children's funds for their own benefit.

Life Insurance: The Foundation of Most Plans

For most young parents, the estate will be funded primarily by life insurance, not accumulated savings. A term life policy — affordable when you are young and healthy — can create a substantial estate out of nothing if you die prematurely.

Key insurance decisions:

• How much coverage? A rough starting point: enough to pay off the mortgage, fund post-secondary education for all children, and provide several years of living expenses. Consult a licensed insurance advisor for an actual number.
• Who is the beneficiary? Naming your estate (rather than children directly) is usually cleaner — the funds flow into your will and the trust you set up. Naming minor children directly as beneficiaries is problematic: the insurer cannot pay funds directly to a minor, and the funds may end up with the OPGT.
• Review after life events: after marriage, divorce, new children, and major changes in income.

RESPs and Estate Planning

If you have a Registered Education Savings Plan (RESP) for your children, review who the subscriber is and what happens on the subscriber's death. An RESP is not governed by your will — the plan's terms and the family relationship structure determine what happens. A lawyer and financial advisor can help you integrate RESP planning with your overall estate plan.

Powers of Attorney for Property and Personal Care

A will takes effect only on death. If you are incapacitated (seriously ill or injured), you need a Power of Attorney for Property (someone to manage your finances) and a Power of Attorney for Personal Care (someone to make health decisions for you). These are separate documents. Without them, your family may need to go to court.

Frequently asked questions