Minor Beneficiaries and Probate: When the Children's Lawyer Must Be Served

You have been named executor, and one of the people who will receive a share of the estate is a child. Before you can get a probate certificate, you need to know who must be told about the application. When a minor is involved, one of those people is the Office of the Children's Lawyer, often called the OCL.

This article explains in plain language when the OCL has to be served, what the notice should contain, what the OCL does and does not do, and how a child's share is handled. Every estate is different, so a lawyer can confirm how these rules apply to yours.

When the Children's Lawyer has to be served

The Children's Lawyer must be served on an application to appoint an estate trustee where a minor has an interest in the estate. This comes from Rules 74.04(4) and 74.05(3) of the Rules of Civil Procedure.

The same office must also be served on applications to pass accounts, and where an interest in the estate is unborn or unascertained. An unascertained interest is one where it is not yet known who will benefit, for example a gift to grandchildren who may not all be born.

Separately, the general probate rules require you to send a copy of the signed application to each estate beneficiary, meaning everyone entitled to a share. For minors or incapable adults, the Children's Lawyer and the Public Guardian and Trustee may also need to be served.

What to send, and to whom

Serve one copy of the notice of application on the OCL even if there are several minor beneficiaries. You must also serve each minor's parent or guardian.

The notice should include the following information:

• A list of all the minors involved.
• The names and addresses of each minor's parents or guardians.
• The approximate dollar value and percentage of each minor's share.
• A copy of the deceased's entire last will.

Working out those share values means you need a reasonable picture of the estate early on. Start gathering account statements, property information and debts before you prepare the application.

What the Children's Lawyer does not do

It is easy to assume the OCL takes over the child's interest. It does not administer estates, act as estate trustee or guardian of property, or file tax returns for a child. You, as executor, still carry the work of administering the estate.

Serving the OCL is a protective step so that the interests of a child are considered when the court deals with the application. Whether the OCL responds, and how, depends on the file, and a lawyer can tell you what to expect in your case.

How a child's share is handled

If there is no will and a child's share is over $35,000, the money is paid into court or to a court-appointed guardian of property. If the share is under $35,000, it can be paid to the parent the child lives with.

If a will leaves property to a child, many wills set up a trust or name someone to hold the funds until the child is older. Read the wording carefully, since it affects what you can pay out and when.

Selling estate real property when a child has an interest

OCL approval is required to sell estate real property when a child has an interest, there is no will or no power of sale under the will, and the sale is for distribution to beneficiaries. It is not required if the sale is to pay debts of the deceased that existed at death.

This matters if the plan is to sell the family home and divide the proceeds. Check the will for a power of sale before you list the property.

What to do next

• Make a list of every beneficiary and note each person's date of birth.
• Identify each minor's parent or guardian and confirm their current address.
• Estimate each minor's share as a dollar amount and a percentage.
• Have the full, original will ready, since a copy of the entire last will goes with the notice.
• Check whether there is a power of sale in the will before planning any property sale.
• Speak with a lawyer if the estate has no will, a large child's share or real estate to sell.

Frequently asked questions