Minors - Custody and Property

Custody of Minors

One of the most important decisions you can make in a Will is the appointment of a person to have custody of your minor children if you and any other parent or person with custody of the child die while the child is a minor. Although these individuals are often described as "guardians", the correct term is "custodian" (under the Children's Law Reform Act, a "guardian" is someone with guardianship over the property of a minor).

If two persons have custody of the child and die at the same time, only the custodians whom they have both appointed will be effective. As a result, it is important that both parents or custodians appoint the same person to have custody.

The appointment is only effective for 90 days. During this period, the person appointed must apply to the court to have the appointment become permanent. The courts ultimately make the determination as to who will have custody over a child, taking into account the best interests of the child.

Property of Minors

In most situations, gifts to minors should be held in trust until they are at least 18 years of age. In Ontario, the general rule is that gifts to minors in excess of $10,000 must be paid into court, where the funds are held until the child turns 18. In order for the child to access the property while a minor, a person who need to apply to the court to be appointed as guardian of property for the child while they are a minor.

Instead, Wills often state that any benefit given to a minor is held in trust by the executor until they reach the age 18 (the Will can also specify a higher age, such as 21 or 25 years old). While the executor holds the funds in trust, the executor is often given the discretion to use the funds for the benefit of the beneficiary.