What Happens If a Beneficiary Is a Minor in BC?

When a child is named in a will or is entitled on an intestacy, the money cannot simply be handed over to the child. People often wonder who holds it and who decides how it is used.

In British Columbia, the Wills, Estates and Succession Act (WESA) and the Trustee Act set out what the personal representative must do. This article explains the main options.

This article covers the law of British Columbia.

The default rule: the Public Guardian and Trustee

If a minor is a beneficiary or intestate successor and there is no trustee or trust for their interest, the personal representative must pay or transfer the minor's interest to the Public Guardian and Trustee, to be held in trust for the minor.

If the gift is not money, the Public Guardian and Trustee may convert it to money, transfer it to the minor, or decline it and recommend that the court appoint a trustee until the minor turns 19.

Appointing a trustee instead

The duty to transfer to the Public Guardian and Trustee does not apply if, before distribution, the court appoints a trustee to hold the minor's interest until age 19. That application is made with notice to the Public Guardian and Trustee.

If the will itself sets up a trust for the child, there is a trustee for the interest, and the default transfer rule applies only where there is no trustee or trust.

What a trust can do until the child is 19

• Trustees holding property for a minor may, at their sole discretion, pay income to the minor's guardians for the minor's maintenance or education.
• The Public Guardian and Trustee releases a child's trust funds to the youth at age 19.
• If a trust agreement sets a longer period, the Public Guardian and Trustee stays trustee until its terms are met.
• Any funds released before then must be for the child's sole benefit, and requests must be made in writing.

Comparing the main options

Timing, tax and other points that affect a child's share

A child's share goes through the same estate steps as any other share, so some general rules matter here too.

• Before applying for probate, the applicant must give notice of the proposed application to the persons the Supreme Court Civil Rules specify. The notice must go to each beneficiary under the will, as well as to living executors and alternate executors.
• The applicant cannot file the probate application until at least 21 days after delivering the notice.
• Except by court order, a personal representative must not distribute the estate within 210 days after the grant is issued. With a will, earlier distribution is possible if all beneficiaries with an interest and all persons who could bring a wills variation claim consent.
• Even after the 210 days, distribution needs court consent if a proceeding has started to decide who is a beneficiary, if wills variation relief is being sought, or if other proceedings may affect distribution.
• A spouse or child who says the will does not make adequate provision for them must start a wills variation proceeding within 180 days from the date the representation grant is issued in BC.

Most gifts and inheritances are amounts that individuals do not have to report as income on their tax return. Probate fees are paid by the estate, not by the beneficiary. How tax applies to a particular estate depends on the facts, so it is worth confirming with an accountant.

If a child named in a will dies before the will-maker, the gift goes, subject to any contrary intention in the will, first to any alternative beneficiary named in the will. A person who does not survive the deceased by 5 days, or by any longer period set in the instrument, is treated as having died first.

What to do next

• Check whether the will creates a trust for the child and names a trustee.
• Confirm the child's age, since the rules turn on age 19.
• If a court-appointed trustee is preferred, speak with a lawyer before distribution, because the application must be made first.
• Keep records of anything paid out for the child's benefit.
• Ask a lawyer if the gift is property rather than money, as different options apply.

Frequently asked questions