Trusts for Minor Children: A Crucial Estate Planning Tool

By
The Tabuchi Law Team
April 11, 2023
5
min read
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As parents, we have an innate and unwavering desire to ensure the safety and well-being of our precious children. This steadfast commitment extends to securing their financial future, a responsibility we take seriously, especially in the possible event of our absence. Trusts, an incredibly strategic option for our families, offer invaluable peace of mind. This comprehensive guide has been thoughtfully crafted exclusively for Ontario residents like yourself. This guide will give you all the critical information needed to make optimal decisions for your beloved children.

What is a trust?

A trust is a legal arrangement in which you (the settlor) transfer assets to a trustee to hold and manage for the benefit of one or more beneficiaries (your child). The trustee is legally responsible for managing the trust assets per the terms of the trust, which you specify.

Why is a trust important for a minor child?

There are several reasons why a trust is essential for a minor child. First, a trust can provide asset protection. If you were to die without a trust, your child's inheritance would be subject to the probate process. Probate is a public process in which the court oversees the distribution of your assets. This can be time-consuming and expensive, and it can also expose your child's inheritance to creditors.

Second, a trust can provide tax savings. When you transfer assets to a trust, you can effectively shift the income tax liability on those assets to the trust. This can be beneficial if the trust is in a lower tax bracket than you are.

Third, a trust can provide financial stability for your child. If you were to die without a trust, your child would receive their inheritance outright, regardless of age or maturity level. This could be problematic if your child is young or financially irresponsible. With a trust, you can control how and when your child receives their inheritance.

Lastly, trusts are private arrangements. This means that the terms of the trust and its assets are not publicly available. This can be beneficial if you want to keep your financial affairs private.


How to set up a trust for a minor child in Ontario

To set up a trust for a minor child in Ontario, you will need to:

  1. Choose the type of trust you want to create. There are two main types of trusts: testamentary trusts and living trusts. A testamentary trust is made in your will and takes effect after your death. A living trust is created during your lifetime and can be modified or revoked.
  2. Choose a trustee. The trustee is responsible for managing the trust assets and distributing them to the beneficiary according to the terms of the trust. You should choose a trustworthy, organized trustee with the financial skills to manage the trust assets effectively.
  3. Define the terms of the trust. This includes specifying the assets to be included in the trust, the age at which the child will receive the assets, and how the assets will be distributed.
  4. Draft and sign the trust document. The trust document is a legal document that sets out the terms of the trust. It is crucial to have the trust document drafted by an experienced estate planning lawyer.

Examples of the benefits of trusts for minor children:

  • A trust can fund a child's education, even if they are not yet old enough to receive the money directly. For example, you could set up a trust to cover your child's tuition, fees, and living expenses while in university.
  • A trust can be used to purchase a home for a child when they are ready to move out independently. This can help your child to avoid taking on a large mortgage debt.
  • A trust can be used to provide financial support for a child who is starting their own business. This can help your child to get their business off the ground and achieve their entrepreneurial dreams.
  • A trust can be used to protect a child's inheritance from creditors or lawsuits. For example, if your child is involved in a car accident and is sued by the other driver, the trust assets could be protected from seizure.
  • A trust can be used to reduce the income tax a child pays on their inheritance. This can be beneficial if your child is in a high tax bracket.

What happens if you don't have a trust for your minor child?

If you die without a trust, the court will administer your child's inheritance. This can be a time-consuming and expensive process, and it can also expose your child's inheritance to creditors.

If your child is young, the court will appoint a guardian to manage their inheritance. Once your child reaches the age of 18, they will receive their inheritance outright. This could be problematic if your child is not financially responsible.

Additional benefits of trusts for minor children

In addition to the benefits listed above, trusts for minor children can also offer the following advantages:

  • Flexibility: Trusts can be tailored to meet your child's and your family's specific needs. For example, you can create a trust for your child's education, housing, and other expenses, or you can build a trust designed to help your child achieve specific financial goals, such as starting a business or buying a home.
  • Control: With a trust, you control how your child's inheritance is managed and distributed. This can be important if you are concerned about your child's ability to manage money wisely.
  • Peace of mind: Knowing that your child's inheritance is protected and that they will be cared for financially and emotionally can give you peace of mind.

Conclusion

Trusts for minor children can be a valuable estate planning tool for Ontario residents. By setting up a trust, you can protect your child's assets, provide for their financial needs, and ensure their inheritance is distributed according to your wishes.

Here are some additional tips for setting up a trust for a minor child in Ontario:

  • Consider the type of trust that is right for your needs. Testamentary trusts are simple to set up but may not be as flexible as living trusts. Living trusts can be more flexible, but they can also be more complex to set up.
  • Choose a trustee who is trustworthy and qualified. The trustee should be willing to put the child's best interests first.
  • Define the terms of the trust clearly and concisely. The trust document should specify the assets to be included in the trust, the age at which the child will receive the assets, and how the assets will be distributed.
  • Have the trust document drafted by an experienced estate planning lawyer. This will help to ensure that the trust is valid and enforceable.

If you are considering setting up a trust for your minor child, please contact an experienced estate planning lawyer to discuss your options.


Importance of Seeking Expert Advice

Congratulations on successfully navigating the intricacies of establishing a trust for a minor! As you ponder your next steps, you may wonder: "Where do I go from here?" It's important to acknowledge that establishing a trust for minor children is complex, with high stakes. Yet, fear not! Our team of experienced legal experts at Tabuchi Law are here to offer unwavering support.

Using a lawyer when setting up a trust for minor children is essential because trusts are complex legal documents that can significantly impact your child's financial future. A lawyer can help you to:

  • Choose the correct type of trust. There are different types of trusts, each with advantages and disadvantages. A lawyer can help you choose the kind of trust that is best for your and your child's needs.
  • Draft a valid and enforceable trust document. Trust documents must be drafted according to the law to be accurate and enforceable. A lawyer can help you draft a trust document that meets all legal requirements.
  • Choose a trustee. The trustee is responsible for managing the trust assets and distributing them to the beneficiary according to the terms of the trust. A lawyer can help you choose a trustworthy and qualified trustee.
  • Fund the trust. Once the trust document has been drafted and signed, you must fund the trust by transferring assets. A lawyer can help you to support the trust in a way that minimizes taxes and maximizes the benefits of the trust.
  • Administer the trust. Once the trust is funded, the trustee will need to administer the trust following the terms of the trust document. A lawyer can guide the trustee in administering the trust and complying with all legal requirements.

In addition to the above, a lawyer can also help you to:

  • Understand the tax implications of trusts. Trusts can have complex tax implications. A lawyer can help you to understand the tax implications of trusts and how to minimize taxes.
  • Protect your child's assets from creditors. Trusts can be used to protect your child's assets from creditors. A lawyer can help you to structure the trust in a way that maximizes asset protection.
  • Plan for your child's future. A lawyer can help you plan for your child's future by drafting a trust that meets your child's specific needs. For example, you can draft a trust for your child's education, housing, and other expenses.

Using a lawyer when setting up a trust for minor children is important because it can help you create a valid, enforceable trust that meets your child's needs.


Here are some additional tips for choosing a lawyer to help you set up a trust for a minor child:

  • Look for a lawyer who has experience in estate planning and trusts.
  • Ask the lawyer about their fees and how they are paid.
  • Get everything in writing, including the lawyer's fees and the scope of their services.
  • Make sure you feel comfortable with the lawyer and that you can trust them.

Setting up a trust for a minor child is a big decision, but it can be a wise way to protect your child's financial future. By using a lawyer, you can ensure that the trust is set up correctly and that it meets your child's needs.

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