3. Learn what happens to your children

What is a will and what happens if I die without making one?
This question has an answer and 4 steps

3. Learn what happens to your children

If you die without a will and have minor children or children with a disability, someone will have to care for them and the property you leave them.

Talk to a lawyer about the differences between custody, trustee, and guardian of property, and how best to make plans for your children.

Minor children

Minor children are those who are younger than 18.


In most cases, the other parent will get custody of your minor children when you die. But, if no one else has custody, making a will allows you to name someone you trust to take care of your children for up to 90 days after you die. If that person wants to continue to look after your children, they have to go to court and ask for custody before the 90 days have passed.

If you don't have a will that says who you'd like to get custody, and more than one person applies for custody, the court makes a decision based on factors like their:

  • biological relationship to your children
  • ability to care for your children financially
  • location
  • age


You might want to create a trust for your children that puts conditions on how and when they get the property you leave them when you die. If you create a trust, you must also name someone to be a trustee who is responsible for managing the trust according to your instructions.

For example, you can create a trust that gives your minor children your property gradually over time. And it can include instructions for paying for things like school and extracurricular activities.

If you feel your adult children are not financially responsible, you can also use a trust to give them your property gradually over time or at an age when you think they will be responsible enough to use it well.

Guardian of property

In some cases, you might be able to name a guardian of property. A guardian of property controls, and is responsible for the property your children get for up to 90 days after you die. They must use the property for the benefit of your children, for example by paying for their schooling.

If there is no guardian of property and nobody applies, and if your child's share of your estate is greater than $10,000, the money will be held by the court until their 18th birthday.

And, if the person who has custody of your children needs money to care for them, they have to apply to the court to have money released.

But if your child's share of your estate is less than $10,000, it may be paid to the person with custody after an estate trustee has been appointed.

Child with a disability

If you have an adult child with special needs who is receiving government benefits or a younger child who may need government benefits after they turn 18, those benefits may be taken away if you leave them property in your will and didn't set up a Henson trust. If done correctly, a Henson trust allows your child to get the property you leave them and to continue to get government benefits.

You May Also Need

Ontario Securities Commission
Ministry of the Attorney General
Ministry of the Attorney General (Office of the Children's Lawyer)
Reviewed: October 31, 2019

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