Probate When a Beneficiary Is a Minor in Ontario

When an estate leaves money or property to a child, the process looks different from an estate where every beneficiary is an adult. A child cannot manage an inheritance alone, so the court system builds in extra notice and extra protection.

This article explains what changes on the probate application, how a child's share can be paid, and what the Office of the Children's Lawyer may do afterwards. It is general information only. The right approach depends on the will and the size of the child's share.

How a minor beneficiary changes the application

The probate application must be served on every beneficiary, including charities and contingent beneficiaries. When one of those beneficiaries is a minor, the application must be served on the minor's parent or guardian and also on the Children's Lawyer.

If there may be unborn or unascertained beneficiaries, for example a gift to grandchildren who have not yet been born, the Office of the Children's Lawyer should also be served. Where the Children's Lawyer is served and there is a will, a statement of the estimated value of the person's interest must be included.

A minor beneficiary can also affect the bond. A small estate, which the Estates Act sets at $150,000 or less, generally does not need a bond, but that exception does not apply if a beneficiary is a minor or is incapable.

How the child's share can be paid

The amount the child is to receive in total makes a large difference. In most cases the rules work like this:

Because Ontario guidance says this applies in most cases, check whether anything in your situation is unusual before relying on the $35,000 line.

Guardian of property

A parent or any other person may apply, on notice to the Children's Lawyer, to be appointed guardian of a child's property. The guardian must transfer all of the property to the child at age 18.

For an estate trustee, a court-appointed guardian can be a practical way to receive a larger share on the child's behalf, because the court has already approved who is holding it.

When the will sets up a trust

A child's share over $35,000 is paid into court when there is no will. A will that sets up a trust and names a trustee can govern how the share is held instead.

The trust terms matter. If the will creates something like an insurance trust but states no terms, the trustee may only hold and invest the money until the child turns 18.

Real estate adds another layer. If property is being sold only so it can be distributed, the sale is not valid without the beneficiaries' concurrence, or approval from the Children's Lawyer or the Public Guardian and Trustee. A sale involving a minor's interest needs the Children's Lawyer's written approval or a judge's order.

Oversight after the money is paid out

The Office of the Children's Lawyer may follow up on how an estate trustee manages a child's interest and may request accounts. If the court grants that request, the estate trustee must bring an application to pass accounts.

An interested person can also move for an order requiring the estate trustee to pass accounts. The court fee for an estate trustee's application to pass accounts is $432, though court fees change from time to time. Keeping clear records from the start makes any later review much easier.

What to do next

• List every beneficiary under 18, plus any contingent or future beneficiaries.
• Work out each child's total share, since the $35,000 figure turns on the total.
• Read the will for trust terms and a named trustee for the child's share.
• Collect contact details for each child's parent or guardian so the application can be served.
• Do not pay out a child's share or sell property involving a child's interest until you have confirmed what approvals are needed.
• Keep receipts, statements and a running record in case accounts are requested.

If the share is large, the will is unclear, or the family disagrees about who should hold the money, speak with an Ontario estates lawyer before taking steps.

Frequently asked questions