Minor Children Inheriting on Intestacy in Ontario: Who Holds the Money

When a parent or relative dies without a will, a child under 18 may be one of the heirs. A child cannot manage a large sum of money, so families often ask who holds it, who decides how it is used and when the child receives it.

The answer depends partly on the size of the child's share. This article explains the general Ontario approach and the points where you should get advice.

How a child ends up with a share

When there is no will, the estate is distributed under the Succession Law Reform Act. Subject to the spouse's rights, the property is distributed equally among the deceased's issue. If a child died before the deceased, that child's share passes to their own children.

If there is a surviving spouse and one child, and the net value of the estate is more than the preferential share, the spouse first takes the preferential share, then one-half of what is left, and the child takes the other half. If the net value is no more than the preferential share, the spouse takes the whole estate. With more than one child, the spouse takes one-third of the remainder and the children share the rest. The preferential share is $350,000 for deaths on or after March 1, 2021, and $200,000 for earlier deaths.

Who manages the estate while a child waits

The estate trustee is the only person with legal authority to manage or distribute an estate. The deceased's property passes to the personal representative, who holds it as trustee for those entitled. A parent does not automatically gain control of the estate just because their child is an heir.

On an intestacy, a spouse or common-law partner usually has the first right to apply for appointment, and a close adult relative can apply after them. A bond is generally required when someone dies without a will, but no bond is required for a surviving spouse where the estate's net value does not exceed the preferential share and an affidavit setting out the estate's debts is filed, and a judge may reduce or dispense with the bond in special circumstances. Even for a small estate, a bond may be needed if a beneficiary is a minor or is incapable under s. 6 of the Substitute Decisions Act, 1992.

How the child's money is held

The applicant must serve the Office of the Children's Lawyer when a beneficiary is under 18. What happens next depends on the size of the share.

The $35,000 figure is set by regulation, so it can change. Confirm the current amount before you rely on it.

Public Guardian and Trustee and other special cases

The Office of the Public Guardian and Trustee may apply to be estate trustee of last resort only if all of several conditions apply. They include that the deceased was an Ontario resident or owned Ontario real estate, there was no will, there are no known next-of-kin living in Ontario or the next-of-kin are minors or mentally incapable adults, and the estate meets the office's financial criteria after the funeral and debts are paid.

• Otherwise, a spouse or common-law partner usually has the first right to apply, and a close adult relative can apply after them.
• A child's share may also be affected if the deceased was separated from a spouse at death. The spouse's intestacy entitlements do not apply if the spouses were separated. Spouses count as separated if, before the death, they had lived apart for three years, or had a written separation agreement, a court order or a family arbitration award settling their affairs after the marriage broke down, and were still living separate and apart because of that breakdown at death. This applies only where that qualifying event happened on or after January 1, 2022.
• A surviving spouse may have to choose between the intestacy entitlement and an equalization payment, which can change what is left for the children.

How a particular child's money can be used for their upbringing before they turn 18 depends on the facts and on any court direction. A lawyer can confirm what applies.

What to do next

• Confirm the date of death and that there is no will, even a partial one.
• Work out who the heirs are and each child's likely share.
• Decide who will apply to be estate trustee and gather the Form 74G consent or renunciation.
• Plan to serve the Office of the Children's Lawyer if any beneficiary is under 18.
• Ask a lawyer how the child's share would be held in your situation.

Frequently asked questions