Opinions
 | "Why can’t I access my child’s insurance money?" |
Under the law, a child is not considered capable of receiving an inheritance. The child is an individual who does not have the necessary mental capacity and financial skills to be able to manage the money properly. Furthermore, a minor does not have the legal capacity to give a legally binding release either to an executor or to an insurance company. As a result, children receive an inheritance before their 18th birthday will instead have that money paid into court. The exception to this rule is if you make provisions in your will for the money to be handled by your executor or trustee.
I have heard many people say that they don’t need a will because they have designated beneficiaries on their insurance policies. Having a designated beneficiary is a good estate-planning tool. It allows you to benefit your loved ones without the need for the insurance proceeds to form part of the estate and your estate will therefore save on probate fees. However, the bad part about having a designated beneficiary for an insurance policy is that it is very rare that the insurance policy will have the necessary trust provisions built into it to allow a minor child to benefit from the gift immediately.
If an individual dies without a will and they have an insurance policy naming their minor child as a beneficiary, the child’s inheritance will generally be paid into court until the child turns eighteen. In order to access these funds, an application to court will need to be made by the child’s parent, guardian or other relative. The law that governs this process is The Infant’s Estate Act.
An individual, usually the child’s remaining parent, will need to hire the services of a lawyer to prepare the necessary court documents needed to apply to court. As part of the process, the lawyer will seek the consent of the Office of the Public Trustee in order to proceed. In these situations, the Public Trustee takes on the role of protector of the child’s estate. The court counts on the Public Trustee for guidance on whether or not to approve an application.
If the court approves an application, the applicant will then be named the Guardian of the Infant’s Estate. The Guardian will then be responsible for managing the monies for the minor until they turn 18. All the actions performed by the Guardian will be monitored by the court to ensure that there is no mismanagement. In fact, the court may ask the applicant to post a personal bond with the court for at least the full value of the estate to ensure that they will faithfully perform their duties. The court will also ask that the Guardian make a true and just account of the infant’s property administered by him. This is a process whereby the Guardian will provide the court with information regarding all the assets that have entered the estate and any payments made out of the estate. This accounting is usually done every two years.
The court process is time consuming and expensive and it doesn’t end once a guardian is named. The guardian’s legal responsibility to report to court does not end until the child turns 18. In order to avoid the added expense, headaches, and legal responsibilities involved, the solution is quite simple. Make a will that includes trust provisions for your minor children’s inheritance.
Disclaimer: The content of this article is not intended as legal advice and is for information purposes only. Should you require legal advice on a specific issue relating to the contents of this article, please seek the services of a legal professional. Alona C. Mercado is a lawyer practicing in Winnipeg with the law firm of MONK GOODWIN LLP. She was called to the Manitoba Bar in 1999 and the Ontario Bar in 2003. Her preferred areas of practice include wills and estates, committees, real estate, business and commercial transactions, and immigration law. Alona can be reached at (204) 956-1060 ext. 233 or amercado@monkgoodwin.com.