Guardians and Trusts for Minor Children in Your Will: A Guide for Australian Parents

Protecting minor children is a key reason for parents to make a will. This guide explains how to combine guardian appointments with testamentary trusts to ensure your children are both raised by people you trust and financially protected.

Why You Need Both a Guardian and a Trust

Key Point: Appointing a guardian without a trust means your children could receive a large inheritance at 18, before they're mature enough to manage it wisely.

Appointing a Guardian

What a Guardian Does

If no parent survives, a guardian generally takes on day-to-day parental responsibilities, including:

• Where children live
• Education decisions
• Healthcare choices
• Religious and cultural upbringing
• General welfare and discipline

How Guardian Appointments Work

Choosing the Right Guardian

Consider these factors when selecting a guardian:

Always Appoint Alternates

Name at least two alternates in case your first choice:

• Dies before you
• Becomes unable due to health
• Is unwilling when the time comes
• Circumstances have changed

Setting Up a Testamentary Trust

Why Children Shouldn't Inherit at 18

Without a trust, children receive their inheritance at 18, the age of legal adulthood. Common problems:

How Testamentary Trusts Work

What the Trust Can Pay For

The trustee can typically pay for:

• Education: School fees, university, tutoring, books
• Healthcare: Medical, dental, therapy, mental health
• Housing: Rent contribution, bond, furniture
• Living expenses: Food, clothing, transport
• Activities: Sports, music, hobbies, school trips
• Capital items: Computer, car when appropriate

Choosing a Vesting Age

What Happens to a Child's Inheritance Without a Trust

If you leave assets directly to a minor child and your will does not establish a trust, the child cannot legally take control of the gift while they are under 18. In practice the inheritance is held on their behalf, commonly by your executor or by a public trustee, until they reach adulthood. The full balance is then handed over outright at 18, regardless of whether the young person is ready to manage it.

A testamentary trust changes this in two important ways. First, it lets you push the vesting age beyond 18 so the funds are released at a point you consider sensible, or in stages. Second, it gives the trustee a clear, ongoing role: applying income and capital for the child's education, housing, health, and living costs along the way, rather than simply warehousing the money until a single payout date. This is why parents who want genuine control over how and when their children benefit usually pair the gift with a trust rather than leaving assets directly.

For a deeper walk-through of how these trusts are structured and taxed, see our guide to testamentary trusts in Australia.

Guardian vs Trustee: Same or Different?

Recommendation: For inheritances over $200,000, separate the roles. The trustee ensures funds are used for children's benefit, not absorbed into the guardian's household.

Why Separating the Two Roles Helps

The guardian and the trustee are solving different problems. A guardian focuses on raising your children day to day: where they live, their schooling, their health, and their general welfare. A trustee focuses on prudently holding and investing the inheritance and deciding when to release funds. These are different skill sets, and the person who is the warmest, most natural carer for your children is not always the best person to manage a substantial sum of money over many years.

Keeping the roles with different people also builds in accountability. When the guardian who is caring for the children has to ask a separate trustee to release funds, there is a natural check on whether spending genuinely benefits the children rather than the wider household. That separation can reduce the risk of conflicts of interest, and it can make the arrangement easier to defend if family members ever question how the money is being used. The trade-off is potential friction between the two appointees, so it helps to choose people who respect each other and to leave a clear letter of wishes explaining how you expect the trust to support the children.

For the underlying rules on appointing a guardian, see our guide to minor children and guardianship in wills, and for how super interacts with your estate plan, see superannuation and your will.

Coordinating Super and Life Insurance

Superannuation is not controlled by your will. To ensure super flows into your testamentary trust:

Important: A binding nomination may lapse after 3 years unless the fund offers non-lapsing nominations; check your fund's rules. Set calendar reminders.

Quick Planning Checklist

Guardian Selection

• Identified primary guardian (had conversation, confirmed willing)
• Identified 1-2 alternate guardians
• Considered capability, values, location, age
• Both parents agree on nomination

Trust Setup

• Created testamentary trust in will
• Set appropriate vesting age
• Appointed suitable trustee
• Decided whether to separate guardian/trustee roles

Super and Insurance

• Set binding death benefit nominations
• Nominations direct to estate (flows to trust)
• Calendar reminder to renew nominations

Documentation

• Guardian wishes clear in will
• Written letter of wishes for guardian
• Executor knows where documents are stored

State-Specific Considerations

Wills in every state and territory commonly appoint guardians and set up testamentary trusts, but the legal basis for a guardian appointment differs. Wills are governed by the Acts below; guardian appointments are dealt with in laws such as the Succession Act 1981 (Qld) s61C, the Wills Act 1970 (WA) s6, the Guardianship of Infants Act 1940 (SA) s13, the Guardianship and Custody of Infants Act 1934 (Tas) s4 and s6, and the Guardianship of Infants Act 1972 (NT) s16, alongside the Family Law Act 1975 (Cth). The guide for your state explains the details, for example How to Make a Will in Queensland.

Legislation and Official Resources

Will-making in Australia is governed by each state and territory's own succession legislation. The core statutes include:

• New South Wales: Succession Act 2006 (NSW)
• Victoria: Wills Act 1997 (Vic)
• Queensland: Succession Act 1981 (Qld)
• South Australia: Succession Act 2023 (SA)
• Western Australia: Wills Act 1970 (WA)
• Tasmania: Wills Act 2008 (Tas)
• Australian Capital Territory: Wills Act 1968 (ACT)
• Northern Territory: Wills Act 2000 (NT)

Because requirements differ between states and are amended over time, always confirm the current rules for your state, or seek advice from a qualified legal professional.

Related Guides

• Minor Children and Guardianship in Wills: Complete Guide – In-depth coverage
• Testamentary Trusts Australia – Detailed trust guidance
• Blended Family Will Planning – Children from different relationships
• Will Executor Role – Choosing who administers your estate

Protect Your Children with WillBuddy

WillBuddy's guided process helps you:

• Select appropriate guardians
• Choose the age your children inherit, including staged ages
• Coordinate guardian and trustee appointments
• Document your wishes clearly