Overview

The Office of the Children’s Lawyer may act on behalf of children under the age of 18 or unborn persons in court cases where they have an interest in an estate or trust.

A child might be entitled to money or property if they are:

  • named as a beneficiary in a will or trust
  • entitled to share in an estate under the law because the deceased died without a will
  • named as a beneficiary of a life insurance policy or a registered plan
  • the registered owner of a real property (land or a building), a bank account, etc.

A child may also have a claim for support under the Succession Law Reform Act if they were dependent on the deceased and the deceased failed to make adequate provision for the child’s proper support. The Office of the Children’s Lawyer may bring a support claim on behalf of a child if there is no one else willing or able to do so.

The Office of the Children’s Lawyer’s approval is required for an estate trustee to sell real property (land or a building) if:

  • a child has an interest in the estate
  • there is no will or no power to sell the real property under the will
  • the property will be sold for the purpose of distribution to the beneficiaries

Our approval is not required if the sale is required to pay the debts of the deceased that existed at the time of death.

We will become involved on behalf of a child in an Ontario estate or court application even if the child does not live in Ontario.

The Office of the Children’s Lawyer does not:

  • administer estates
  • act as an estate trustee
  • act as guardian of property for a minor
  • file tax returns on behalf of a child (a parent or guardian with decision-making responsibility for a child should file required income tax returns for their child)

When to serve the Office of the Children’s Lawyer in estates and trust matters

The Office of the Children’s Lawyer must be served on behalf of a child in the following types of cases:

The Office of the Children’s Lawyer should also be served when there is an unborn or unascertained interest in an estate or trust. For information on how to serve the Office of the Children’s Lawyer.

Find out if a child is a beneficiary of an estate

If the deceased left a Will, you can ask the estate trustee or the estate trustee’s lawyer if your child is a beneficiary of the estate.

If the deceased died without a Will, the Succession Law Reform Act governs who is entitled to a share in the estate. Learn more about what happens if a person dies without a Will.

If a person asks the court to appoint them as estate trustee, and your child is a beneficiary, you should receive a notice of this court application. The notice, called notice of application for certificate of appointment of estate trustee, must be delivered to you at your last known mailing address. If you receive this notice and you want more information about the application, you should contact the person who is applying to act as estate trustee or the person’s lawyer.

To ensure you receive notice of the application, you can contact the person applying to be an estate trustee (or their legal representative) or the court office where the deceased lived. You can also file a Request for Notice of Commencement of Proceeding with the court.

You can obtain a copy of the court application and the Will at the court office. You must pay a court fee to see the file and to make photocopies.

To find out whether a child is eligible for benefits under the Canada Pension Plan as a result of the death of a parent, you can contact Human Resources and Skills Development Canada at 1-800-277-9914 or visit: Service Canada CPP children's benefits.

The Office of the Children’s Lawyer and appointment of an Estate Trustee

If there is any beneficiary of the estate who is under the age of 18, a person applying for a certificate of appointment of estate trustee must serve the notice of the application on:

  • the Office of the Children’s Lawyer (only one copy is needed even if there are more than one minor beneficiaries) and
  • the parent or guardian of any minors with an interest in the estate

If there is any beneficiary under the age of 18, the notice of application for certificate of appointment of estate trustee should:

  • list all minor beneficiaries
  • the names and addresses of each minor’s parents or guardians
  • the approximate dollar value of the minor’s interest in the estate and the approximate percentage value of the minor’s share
  • include a copy of the deceased’s entire last Will, if any

Our role in estate and trust accounts

We may become aware of a child’s interest in an estate or trust when we receive notice or are told about it informally by a child’s parent or other person. When we are aware of a child’s interest in an estate or trust, we may:

  • follow up with the estate trustee to confirm the child’s interest in the estate
  • follow up on the estate trustee’s management of the estate
  • ask to see the estate accounts and /or copies of receipts, invoices, cancelled cheques, etc.

If the estate trustee does not respond to our request or provide the estate accounts, or if there are concerns with the accounts, we may ask the court to make an order, requiring the estate trustee to give us the accounts. If the court grants the request, the estate trustee must bring an application to pass accounts.

What happens to a child’s inheritance from an estate

Your child may be entitled to money from the estate of a person who has passed away.

If there is a will

Your child would receive their share of the estate as stated in the will, usually when the child reaches a certain age. The estate trustee cannot pay money from the child’s inheritance unless it is allowed in the will.

You may contact the estate trustee or their lawyer if you have questions about your child’s inheritance.

If there is no will and the child’s share is more than $35,000

If there is no will, then your child will receive their share when they turn 18. The estate trustee can’t hold your child’s money or pay out any money to or for the child. Your child’s money is paid into court, to be held and managed by the Accountant of the Superior Court of Justice. Alternatively, the money could be paid to a parent or other person who has been appointed by the court as the child’s guardian of property.

If you have a child with money paid into court and you cannot afford an expense for the child, you can make a request for money from the child’s account through the Office of the Children’s Lawyer Minors’ Funds Program.

If the child’s share is less than $35,000

If the money the child will receive is less than $35,000, it can be paid to the parent the child lives with or the person with lawful custody. That person must hold the child’s money until they turn 18 or the age stated in the will. The money can be paid to the child if the child has a legal obligation to support another person.

The parent or person receiving the child’s money is responsible for the care and management of the money as a guardian of property and for holding the child’s money until they turn 18 or the age stated in the will. For information on the responsibilities of a guardian of property.

If the amount of money the child will receive is less than $35,000, the parent or guardian with responsibility for the child may still choose to pay the money into court.

When a child is a beneficiary of life insurance

If your child is entitled to money as a beneficiary of a life insurance, there may be rules about who manages your child’s money and how to access it.

If there is a named trustee

When a child is entitled to money from a life insurance policy (beneficiary designation), an adult may be named as the trustee of the policy proceeds.

The trustee should get a copy of the beneficiary designation form signed by the deceased from the insurance company. The form will set out the terms of the trust, including:

  • whether the trustee can make payments from the trust for the benefit of the child
  • when the trustee must pay the money to the child

If there are no terms in the designation, the trustee is only allowed to hold and invest the money for the child until they reach 18. The trustee may not use the trust money for any purpose if there are no trust terms. The money must be paid to the child when they turn 18.

If there is no trustee named

If no adult is named as trustee and the child is to receive more than $35,000, the money is paid into the court to be held and managed by the Accountant of the Superior Court of Justice. Alternatively, the money could be paid to a parent or other person who has been appointed by the court as the child’s guardian of property. The money will be released to the child when they turn 18 or the age specified in the beneficiary designation or other testamentary document.

If your child has money paid into court and can’t afford an expense for the child, you can request money from your child’s account though the Office of the Children’s Lawyer Minors’ Funds Program.

If the total amount owed to a child is less than $35,000 it can be paid to the parent the child lives with or a person with lawful custody of the child. The person receiving the child’s money is responsible for the care and management of the money as a guardian of property, until the child turns 18. The money can be paid to the child if the child has a legal obligation to support another person. For more information on the responsibilities of a responsibilities of a guardian of property.

Asking the Office of the Children’s Lawyer to become involved

If you have concerns or would like to ask the Office of the Children’s Lawyer to be involved in an estate or trust matter, send a letter to our office with the following information:

  • deceased’s name
  • deceased’s date of death
  • deceased’s marital status
  • child’s name
  • child’s date of birth, with birth certificate or other supporting documents
  • estate trustee’s name
  • estate trustee’s address, phone number and email address
  • estate trustee’s lawyer’s name and contact information
  • a copy of the will or trust deed if available.

In addition, providing the following information will help us understand your child’s interest:

  • approximate value of the estate or trust
  • nature of property that the child is entitled to (share in the estate, real estate, life insurance, or other benefits)
  • value of the property that the child is entitled to
  • a summary of any concerns
  • a family tree
  • a copy of the will or trust deed (if any)
  • a copy of any relevant documents, such as:
    • certificate of appointment of estate trustee
    • application for certificate of appointment of estate trustee
    • separation agreement
    • court orders
    • life insurance beneficiary designation forms
    • property valuations

The Office of the Children’s Lawyer is involved in a matter on behalf of the minors with an interest in the proceeding. We do not receive instructions from or report to the parents of the child or children we represent.

Inquiries or concerns about a child’s interest in an estate can be forwarded by email to OCL.Inquiries@ontario.ca. For any other questions, contact the Office of the Children’s Lawyer.

Updated: August 12, 2021
Published: April 30, 2021