- Before filing a probate application, the applicant must give it to the estate beneficiaries, and may also need to notify the Children's Lawyer and the Public Guardian and Trustee.
- For an incapable adult with no guardian or attorney who has authority in the proceeding, notice goes to the Public Guardian and Trustee.
- For a minor, notice goes to a parent or guardian and to the Children's Lawyer.
- Who must be notified in a particular estate depends on the facts, so confirm with a lawyer.
Estates sometimes involve people who cannot look after their own interests: a child, an adult who lacks capacity, or an heir who cannot be found. The law builds in safeguards, and an executor who skips them can face delays or court problems.
This article explains, in general terms, when the Public Guardian and Trustee and the Children's Lawyer come into the picture in Ontario estates, and what an executor should do about it.
Why these offices are involved
A minor or an incapable adult cannot protect their interests in the way other beneficiaries can. Two public offices help. The Office of the Children's Lawyer deals with children and unborn or unascertained interests, and the Office of the Public Guardian and Trustee deals with incapable adults.
Probate is normally necessary when the deceased owned real property or assets held by a financial institution, and typically when there is no will, no named estate trustee, or a dispute about the trustee or will. In those applications the notice steps below apply.
Who gets notice in which situation
| Situation | Who receives notice |
|---|---|
| Beneficiary is a minor | A parent or guardian, and the Children's Lawyer |
| Beneficiary is a mentally incapable adult with a guardian or attorney | The guardian or attorney |
| Incapable adult has no guardian or attorney with authority in the proceeding | The Public Guardian and Trustee |
| Unborn or unascertained interest in an estate or trust | The Children's Lawyer should also be served |
On a probate application, the applicant must send or give the application to the estate beneficiaries, with the copy signed before a Commissioner for Taking Affidavits. Where minor or incapable adult beneficiaries are involved, the application may also need to go to the Office of the Children's Lawyer and the Office of the Public Guardian and Trustee.
When the Children's Lawyer must be served
The Children's Lawyer must be served on behalf of a child in applications to appoint an estate trustee, in applications to pass estate accounts, and in applications that may affect a child's interest, such as will interpretation, will challenges and trustee removal. The Children's Lawyer also acts for unborn persons in court cases where they have an interest in an estate or trust.
If the Children's Lawyer asks for estate accounts and the trustee does not respond, the Children's Lawyer may ask the court for an order requiring accounts. If granted, the estate trustee must bring an application to pass accounts. Responding promptly avoids that step.
Other places minors and incapable beneficiaries matter
- Small estates: a bond may be required for a small estate certificate in some cases, including when minor or incapable adult beneficiaries are involved.
- Small estate limit: a small estate is one valued at $150,000 or less, and larger estates need a Certificate of Appointment of Estate Trustee.
- Processing: applications for a certificate are typically processed within 15 business days but may take longer.
- Missing paperwork or notice problems can add to that time, so complete the notice steps before filing.
What happens when an heir cannot be found, or whether the Public Guardian and Trustee has a particular role in that case, depends on the facts. Do not assume an unknown heir can simply be ignored; ask a lawyer how to proceed.
What to do next
- List every beneficiary and note anyone who is a minor, may lack capacity, or cannot be located.
- Find out whether an incapable beneficiary has a guardian or attorney with authority.
- Prepare the application so it can be given to all beneficiaries before filing.
- Ask a lawyer which forms and notices apply, including Form 74.17 notice rules.
- Respond promptly to any request from the Children's Lawyer for accounts.
If there is a dispute about the will or the trustee, or a beneficiary's interest may be affected, get legal advice before taking steps.
Frequently asked questions
Is the Public Guardian and Trustee always notified in an estate?
No. It is notified when an incapable beneficiary has no guardian or attorney with authority in the proceeding. In some applications involving minor or incapable adult beneficiaries, the application may also need to go to the Public Guardian and Trustee.
What if a beneficiary is a child?
Notice goes to a parent or guardian and to the Children's Lawyer. The Children's Lawyer must also be served in applications to appoint an estate trustee and to pass accounts.
What if there is an unborn or unascertained beneficiary?
The Children's Lawyer should also be served when there is an unborn or unascertained interest in an estate or trust.
Can notice problems slow down the certificate?
Applications are typically processed within 15 business days but may take longer. Completing the required notice steps before filing helps avoid avoidable delay.
Sources
- Ontario.ca – Apply for probate of an estate — ontario.ca
- Ontario.ca – Probate of a small estate — ontario.ca
- Ontario.ca – Office of the Children's Lawyer and estates and trusts matters — ontario.ca
- Ontario Court Forms – Form 74.17 — ontariocourtforms.on.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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