In my final blog post of my three part series [link to Part one and Part two], I’ll look at what to consider when a parent or guardian is notified that their minor child has an interest in an estate. Such interest, as discussed in my other blogs, may be a legacy (i.e. specific gifts of personal property or cash gifts) or an interest in the residue of the estate.
As I outlined in this blog series, if the executor is required to obtain a Certificate of Appointment of Estate Trustee with a Will (the “Certificate”), the parent or guardian of the minor beneficiary will be served, under the Rules of Civil Procedure with a copy of the Notice of Application of Estate Trustee with a Will (the “Notice”), together with either a copy of the last will and testament (the “Will”) where the minor beneficiary is a residuary beneficiary or an extract of the provision in the Will that provides for the gift for the minor.
My child needs a lawyer?
Not only will the parent or guardian receive the Notice, the executor is also required to serve the Notice on the Office of the Children’s Lawyer (the “OCL”). No, this does not mean the parent or guardian has to retain a lawyer on behalf of their minor child.
The OCL is a government agency within the Ministry of the Attorney General which represents minor beneficiaries under the age of eighteen (18) years and unborn or unascertained beneficiaries where a minor has a right to receive money or property.
In the event the deceased died intestate (without a Will), an administrator for the estate will need to be appointed. If a minor has an interest in the estate pursuant to Part II of the Succession Law Reform Act , the OCL and the parent or guardian of such minor beneficiary will be served with Form 74.17 – Notice of Application of Estate Trustee without a Will.
Even if the minor beneficiary is not a resident of Ontario, the OCL will still be notified of the minor’s interest in an estate. Once the OCL is made aware of a minor beneficiary’s interest in an estate, they may oversee the estate trustee’s management of the estate and may also ask for an accounting. The estate trustee has an obligation to maintain accounting records of the estate and be prepared to present them for inspection upon request.
Payment of a minor beneficiary’s interest where there is a Will
Typically, the Will will provide for the payment to the minor beneficiary to be made to him or her upon the minor beneficiary attaining a specific age, or will set out staggered payments of the minor beneficiary’s interest in the estate (i.e. 1/3 at age 21, 1/3 at age 25 and the balance at age 30). It is possible that the Will provides for the appointment of a special trustee who is different than the executor to manage the trust for the minor beneficiary. Where no specific special trustee is named, the executor will become the trustee.
Where the will provides for the establishment of a trust to maintain the minor beneficiary’s interest, upon the completion of the administration of the estate by the executor, the executor will pay to the special trustee of the trust, the minor beneficiary’s entitlement pursuant to the estate. Where the executor is also acting as trustee of the minor beneficiary’s trust, the executor will establish a separate trust account for that minor beneficiary’s interest and will begin administering the trust in accordance with the terms of the Will. The trustee of the trust will need to review the provisions of the Will and seek legal advice to determine their authority for making payments from the trust on behalf of the minor beneficiary. Further details of the management of a trust for a minor beneficiary is beyond the scope of this blog post.
Payment of a minor beneficiary’s interest where there is no Will
In the case where the deceased died without a will and a minor beneficiary has an interest in an estate, his or her share must be paid into the Accountant for the Superior Court of Justice or to a court appointed guardian of property.
The minor beneficiary will be entitled to receive his or her interest in the estate upon attaining the age of eighteen (18) years. If the funds are held with the Accountant of the Superior Court of Justice, the now adult beneficiary will need to contact that office to have the funds released. If the funds are held by a guardian of property, the guardian will have an obligation to pay to the minor beneficiary upon him or her attaining the age of eighteen (18) years, any amount that the guardian is holding in trust for such minor beneficiary.
Why can’t I receive the money for my minor child – I’m their parent!
One misconception that most people have is that as parent or guardian of a minor child, they are entitled to receive and manage any payment for their minor child. This is not the case. In Ontario, a parent is automatically the “guardian of the person” of his or her minor child. However, a parent is not automatically the “guardian of property” of his or her minor child’s property. A parent can only receive such authority on behalf of a child by statute, court order or other document, such as a will.
Section 51(1) of the Children’s Law Reform Act (the “CLRA”) provides as follows:
“51 (1) If no guardian of a child’s property has been appointed, a person who is under a duty to pay money or deliver personal property to the child discharges that duty, to the extent of the amount paid or the value of the personal property delivered, subject to subsection (1.1), by paying money or delivering personal property to,
(a) the child, if the child has a legal obligation to support another person;
(b) a parent with whom the child resides; or
(c) a person who has lawful custody of the child. 2001, c. 9, Sched. B, s. 4 (3); 2016, c. 23, s. 10 (1).
(1.1) The total of the amount of money paid and the value of personal property delivered under subsection (1) shall not exceed the prescribed amount or, if no amount is prescribed, $10,000. 2001, c. 9, Sched. B, s. 4 (3).”
Where the minor beneficiary has an entitlement of an amount under $10,000 and such amount is paid to the parent or guardian on behalf of such minor beneficiary, the parent or guardian must:
- ensure that they are investing the money as required by the court, the will, the trust or the Trustee Act;
- maintain records of all financial transactions relating to the funds in their possession;
- ensure that the funds are not used for any reason unless permitted in the will (i.e. education, support, health) or authorized by the court; and
- transfer the money to such beneficiary upon them attaining the age of eighteen (18) years unless the will provides otherwise, or the court orders.
Pursuant to s. 51(1.1) of the CLRA, the estate trustee is not authorized to pay and transfer the legacy of any amount over $10,000 to the minor beneficiary’s parent or guardian.
Releasing the Estate Trustee
As I pointed out in blog two of this series, the estate trustee will likely want to be released in respect of his or her administration of the estate. As discussed, there are two ways to do so: (i) by written release, or (ii) through a formal passing of accounts.
The estate trustee will be unable to obtain a release from any minor beneficiary and therefore, will be required to formally pass their accounts if they wish to be released. Under s. 74.18(3.1) of the Rules of Civil Procedure, the OCL represents a person who has a contingent or vested in interest in the Estate and therefore must be served with the following (i) the estate accounts for the relevant period verified by affidavit of the estate trustee; (ii) a copy of the Certificate (or Certificate of Appointment of Estate Trustee without a Will, in the event of an intestate estate) and (iii) a copy of the judgment on any previous passing of account applications. The OCL will review the material provided and determine whether they will participate in the passing of accounts by serving the estate trustee with a notice of objection.
Once the judgment is issued on the passing of accounts, the estate trustee is effectively released from their administration for the period of the accounts.
I hope this series has provided an insight into what it means for a beneficiary to receive notice of their interest in an estate. Thanks for reading.
 A minor might have an interest in property if he or she is (i) named as a beneficiary of a will or trust; (ii) named a beneficiary of a life insurance policy or a registered plan; (iii) beneficiary under the Succession Law Reform Act because the deceased died without a will; or (iv) the registered owner of real property, a bank account, etc.
 Succession Law Reform Act, R.S.O. 1990, c. S.26
 In this blog, estate trustee refers to either the executor of the estate where the Certificate is granted or the administrator of the estate in the case of an intestate estate.
 Trustee Act, R.S.O. 1990, c. T.23
 R. R. O. 1990, Reg. 194: Rules of Civil Procedure under Courts of Justice Act, R.S.O. 1990, c. C.43