Who Would Raise Your Kids? Choosing a Guardian in Your Will in Australia

Providing for minor children is a key reason for parents to make a will. Without a will, if neither parent survives, a court may have to decide who raises your children, and their inheritance is managed under default rules, potentially not the people or arrangements you would choose.

The Australian Context: Why This Matters

Why This Matters

It is easy to put off making a will while children are young. Without a will, no guardian is named and, if neither parent survives, a court may have to decide who raises your children, and your children's inheritance may pass to them outright at 18.

The Reality of Not Having a Plan

When parents die without naming a guardian and the family cannot agree, a court may have to decide who cares for the children. Such cases can involve:

• Competing claims from multiple family members
• Children placed with people parents might not have chosen
• Drawn-out family disputes
• Children separated from siblings
• Legal costs that may be paid from the children's inheritance
• Uncertainty during an already devastating time

For example, if both parents die without naming a guardian and each side of the family wants to raise the children, a court may have to decide between them. A guardian nomination in each parent's will does not bind the court, but it states your wishes clearly and can reduce the room for dispute.

Understanding Guardian Appointments

What Is a Guardian?

A guardian is the person you nominate to raise your children if both parents die before the children reach 18. The guardian takes on day-to-day parental responsibilities including:

• Where the children live
• Education decisions
• Healthcare decisions
• Religious and cultural upbringing
• General welfare and wellbeing
• Day-to-day discipline and guidance
• Extracurricular activities and social life

The Legal Framework

Guardian appointments in Australia operate within a specific legal framework that parents need to understand.

How Courts Make Guardian Decisions

If a court is asked to decide who cares for your children, it assesses:

The Surviving Parent Usually Becomes Guardian

Important: If you die and your children's other parent is alive, they usually keep parental responsibility. In South Australia and the Northern Territory, a guardian you appoint in your will acts jointly with the surviving parent unless that parent objects, in which case the appointed guardian can ask a court to decide. In Queensland, the appointment generally takes effect only when the last surviving parent dies, unless your will shows otherwise. See the guide for your state, for example How to Make a Will in South Australia.

When Your Nomination Matters Most

Your guardian nomination becomes crucial in these scenarios:

Choosing the Right Guardian

Key Considerations

Selecting a guardian is one of the most important decisions you'll make. Consider these factors carefully:

Questions to Ask Potential Guardians

Before nominating someone, have an honest conversation about:

• Are they willing to be guardian if the situation arises?
• Do they understand what's involved, the commitment, the challenges?
• How would they approach key decisions (education, religion, discipline)?
• Where would children live? Would they need to move or renovate?
• How do their own children/partner feel about it?
• What support would they need (financial, practical, emotional)?
• Are there any circumstances where they couldn't serve?
• What are their views on maintaining relationships with other family?
• How would they handle teenagers differently from young children?
• Are they willing to follow your documented wishes?

Evaluating Common Guardian Choices

Age-Specific Considerations for Guardian Choice

Example Scenario: Choosing Between Options

The following is a hypothetical example.

The Chen Family: Sarah and Michael have two children aged 4 and 7. Their options:

Their decision: Nominated Michael's sister as primary guardian (best balance of capability and commitment), Sarah's parents as alternates (for short-term if needed, with plan to transition to sister). Included wishes about maintaining relationship with Sydney grandparents.

Appointing Alternate Guardians

Always appoint at least one alternate (ideally two) in case your first choice:

• Dies before you
• Becomes incapable due to health issues
• Is unwilling when the time comes
• Is deemed unsuitable by the court
• Has circumstances that have changed (divorce, relocation, financial problems)
• Has their own family crisis

Recommendation: Create a hierarchy of alternates:

1. Primary: Your first choice
2. First alternate: If primary is unavailable
3. Second alternate: Backup to the backup
4. General direction: "If none of the above, I request a member of my extended family rather than my spouse's family" (or similar guidance)

How to Word Guardian Appointments

Basic Guardian Clause

"I appoint [Full Name] of [Address] to be the guardian of any of my children who are under the age of 18 at the date of my death. If [Full Name] is unable or unwilling to act, or has predeceased me, I appoint [Alternate Full Name] of [Address] to be guardian."

Joint Guardians

You can appoint joint guardians (e.g., a couple):

"I appoint [Name 1] and [Name 2] of [Address] to be the joint guardians of my minor children. If either is unable or unwilling to act, the other shall act as sole guardian."

With Multiple Alternates

"I appoint [Primary Name] of [Address] to be the guardian of my minor children. If [Primary Name] is unable or unwilling to act, I appoint [Alternate 1 Name] of [Address]. If [Alternate 1 Name] is also unable or unwilling to act, I appoint [Alternate 2 Name] of [Address]."

With Specific Wishes

"I appoint [Full Name] as guardian and express my wish that: (a) My children continue to attend [School Name] or a school of similar quality and approach; (b) My children maintain regular contact with their maternal/paternal grandparents and extended family; (c) My children be raised in awareness of the [Religion/Culture] faith and traditions; (d) My children's inheritance be used for their benefit and not absorbed into general household expenses. These wishes are not legally binding but are an expression of my hopes for my children's upbringing."

For Separated Parents

"I appoint [Guardian Name] of [Address] to be the guardian of any of my children who are under 18 at my death."

Don't make the appointment depend on the other parent being unable or unwilling to care for the children. While a parent is alive, they usually keep caring for the children, and if they can't, a court usually decides who does. In WA, an appointment in your will usually only takes effect if no one else has parental responsibility when you die (Family Court Act 1997 (WA) s71(5)). In Queensland and the ACT it usually starts only when the other parent has died too (Succession Act 1981 (Qld) s61D; Testamentary Guardianship Act 1984 (ACT) s10).

Testamentary Trusts for Children

Why You Need a Trust

Without a trust, children receive their inheritance at 18, the age of legal adulthood in Australia. This can be highly problematic:

Example: A Large Inheritance at 18

For example, if a parent leaves a substantial sum directly to a child, once the child turns 18 the whole amount is theirs to spend, lend, or invest as they choose, with no one to guide them. A testamentary trust with a later vesting age, such as 25, keeps the money under a trustee's care in the meantime while still allowing it to be used for the child's education, housing, and living costs.

How Testamentary Trusts Work

What Trusts Can Pay For

The trustee can typically pay for:

Choosing a Vesting Age

Sample Staged Distribution Structures

Conservative Approach:

"The Trustee shall distribute to each child:

• 25% of their trust fund when they attain age 25
• A further 25% when they attain age 28
• The remainder when they attain age 30"

Balanced Approach:

"The Trustee shall distribute to each child:

• 10% of their trust fund when they attain age 21
• 30% when they attain age 25
• 30% when they attain age 28
• The remainder when they attain age 30"

Education-Focused Approach:

"The Trustee shall distribute to each child:

• Sufficient funds for tertiary education between ages 18-25
• A home deposit (maximum $150,000) when they demonstrate readiness to purchase
• The remainder when they attain age 30"

Milestone-Based Approach:

"The Trustee may, at their discretion, distribute portions of the trust fund when the beneficiary:

• Completes a tertiary qualification
• Maintains steady employment for 2+ years
• Demonstrates financial responsibility through savings
• Purchases a first home"

Tax Benefits of Testamentary Trusts

Worked Example: The Smith children's testamentary trust earns $30,000 in a year from investments. With three minor beneficiaries:

• Each child is allocated $10,000
• Each pays $0 tax (under $18,200 threshold)
• Total family tax: $0

Without the trust, if the same income flowed to one adult, all $30,000 would be taxed in that one person's hands at their marginal rate, so the family's total tax would usually be higher.

Choosing a Trustee

Who Can Be Trustee?

Guardian vs Trustee: Same or Different?

Recommendation: For inheritances over $200,000, strongly consider separating the roles. The trustee provides oversight to ensure funds are used for children's benefit, not absorbed into the guardian's household expenses.

Example: Why Separation Matters

For example, if the guardian also controls the children's money, no one else routinely sees how it is spent, and household costs and the children's costs can blur together. With a separate trustee, payments are documented and requests for funds have to be justified to someone else, which makes misuse harder and easier to detect.

Trustee Duties

Trustee Fees

Professional fees are charged for every year the trust runs, so over a long trust they can add up. Ask for a fee schedule before appointing a professional trustee.

Financial Support for Guardians

Why Guardians Need Financial Support

Raising additional children costs money. Without provision:

• Guardian may struggle financially
• Your children may feel like a burden
• Guardian may need to spend their own savings
• Quality of care may be compromised
• Guardian may decline the role due to financial concerns
• Children may miss opportunities (better schools, activities, travel)

The Costs of Taking on Children

These costs depend heavily on the family's lifestyle and school choice, so it helps to talk them through with your chosen guardian.

How to Provide for Guardians

Sample Guardian Support Clauses

Basic Support:

"I direct my Trustees to pay to the guardian of my children: (a) An initial sum of $30,000 to assist with any necessary adjustments to their living arrangements; and (b) Such sums from the children's trust fund as the Trustees consider appropriate for the maintenance, education, and welfare of my children."

Detailed Support:

"I direct my Trustees to provide financial support to my children's guardian as follows: (a) An initial establishment payment of $50,000 within 60 days of my death; (b) A monthly care payment of $2,000 per child, adjusted annually for CPI; (c) All school fees, uniforms, and educational expenses paid directly to the school; (d) All medical, dental, and therapeutic expenses on presentation of receipts; (e) Reasonable holiday and recreational expenses up to $5,000 per child per year; (f) Any other expenses the Trustees consider reasonable for the children's welfare."

With Accountability:

"The guardian shall provide the Trustees with quarterly statements of expenses claimed, and the Trustees shall have access to records of how funds have been used for the children's benefit. The Trustees may reduce or suspend payments if they believe funds are not being used appropriately for the children."

Superannuation and Life Insurance

Super Doesn't Automatically Go to Children

Superannuation is not controlled by your will. It's paid according to:

1. Your binding death benefit nomination, or
2. The super fund trustee's discretion (if no binding nomination)

Important: Without a binding nomination to your estate, super may:

• Go directly to adult beneficiaries (bypassing your trust)
• Go to your children at 18 (bypassing your trust)
• Be contested by multiple dependants
• Be distributed in ways you wouldn't choose

Coordinating Super with Your Will

Sample Super/Insurance Setup for Parents

A hypothetical example of how two parents might set this up:

• Each parent's super: Binding nomination → Estate → Testamentary Trust
• Each parent's life insurance (outside super): Beneficiary → Estate → Testamentary Trust

Result: everything flows through the trust set up for the children

Keeping Nominations Current

Common Super/Insurance Mistakes

State-Specific Rules

New South Wales

Victoria

Queensland

South Australia

Western Australia

Tasmania

Australian Capital Territory

Northern Territory

If Parents Disagree on Guardian

Married/Together Parents

Both parents should ideally:

• Discuss and agree on guardian choice
• Nominate the same person in their wills
• Include the same alternates in the same order
• Review together when circumstances change

If parents name different people:

• Both people named generally act jointly; a court decides only if someone applies
• Creates uncertainty and potential family conflict
• Children may be traumatised by dispute
• Legal costs from the children's inheritance

Resolution approaches:

1. Compromise: Agree on someone you both accept
2. Prioritise: One parent's choice as primary, other's as alternate
3. Mediation: Use family counsellor if can't agree
4. Lawyer advice: Get professional guidance on best approach

Separated/Divorced Parents

Best approach: Even if separated and in conflict, try to agree on guardian nominations, your children's welfare should transcend personal disputes. Consider family mediation focused specifically on this issue.

Documentation to Support Your Choice

If you anticipate disagreement or have concerns about the other parent's likely nomination, document:

• Why you chose your nominated guardian
• Your concerns about alternatives
• Your children's relationships with potential guardians
• Your parenting values and approach
• Any professional advice received
• Discussions with your nominated guardian

This doesn't guarantee the court will follow your wishes, but it provides important context.

Special Situations

Children with Disability or Special Needs

Special Disability Trust (SDT): Consider whether a Special Disability Trust is appropriate, these have specific Centrelink exemptions but strict rules. Professional advice essential.

Sample lifetime trust clause:

"The trust for [Child's Name] shall continue for [their] lifetime and shall not vest at any particular age. The Trustees shall use the trust fund for [their] maintenance, education, advancement, and welfare, having regard to [their] disability and [their] entitlement to government benefits."

Children Living in Different Locations

Very Young Children

For infants and toddlers:

• Ensure guardian can meet needs of very young children
• Consider that needs will change dramatically over 15+ years
• Choose someone with parenting experience
• Plan for childcare arrangements
• Consider guardian's work flexibility

Teenagers

For children aged 13-17:

• Consider including older teenagers in discussion
• Think about someone who can handle adolescence
• Guardian should be willing to set appropriate boundaries
• Consider whether teen would actually live with guardian
• Think about transition to independence

Multiple Children of Different Ages

Strong recommendation: Keep siblings together unless there's a compelling reason not to. Separation can add to children's sense of loss.

Common Mistakes Parents Make

In Guardian Appointments

In Financial Arrangements

In Documentation

Comprehensive Checklist for Protecting Minor Children

Guardian Selection

• Identified primary guardian choice
• Had thorough conversation with potential guardian (confirmed willingness)
• Identified at least one alternate guardian
• Had conversation with alternate guardian(s)
• Considered guardian's age, health, capability long-term
• Considered children's existing relationship with guardian
• Considered practical matters (location, other children, housing)
• Both parents agree on nomination (if applicable)
• Considered guardian's parenting style and values
• Discussed how guardian would handle specific scenarios

Financial Arrangements

• Created testamentary trust for children
• Set appropriate vesting age(s)
• Considered staged distribution structure
• Appointed suitable trustee
• Decided whether to separate guardian/trustee roles
• If separating, chosen appropriate trustee
• Included provisions for guardian's initial expenses
• Included provisions for ongoing guardian support
• Specified what trust can pay for
• Included trustee powers and discretions
• Considered tax benefits of trust structure

Super and Insurance

• Located all superannuation accounts
• Set up binding death benefit nominations
• Nominations aligned with will/trust structure (nominate to estate)
• Noted expiry dates for binding nominations
• Set calendar reminder to renew nominations
• Life insurance beneficiaries aligned with will
• Reviewed total coverage adequate for children's needs
• Considered additional life insurance if needed

Documentation

• Guardian wishes documented clearly in will
• Written comprehensive letter of wishes for guardian
• Created information pack for guardian
• Included children's details (DOB, school, medical)
• Included healthcare information and contacts
• Included important relationships and family contacts
• Documented daily routines and preferences
• Included educational preferences and expectations
• Included values, beliefs, and approaches to parenting
• Executor knows where all documents are stored
• Considered secure storage (with solicitor or in safe place)

Review Schedule

• Set calendar reminder for annual review
• Plan to review after any major life event
• Review when children reach significant ages
• Review when guardian's circumstances change
• Review when financial situation changes significantly

Letter of Wishes to Your Guardian

Consider writing a detailed letter (kept with your will) that includes:

Sample opening:

"Dear [Guardian Name],

If you're reading this, the unthinkable has happened and I'm trusting you with the most precious people in my life. I've written this letter to help you understand who our children are and how we've been raising them, in the hope it will help you continue what we started..."

This letter isn't legally binding but provides invaluable guidance and can be updated without changing your will.

Example Scenarios and Solutions

The following families are hypothetical examples of common situations, not real cases.

Scenario 1: Young Family with Simple Estate

The Williams Family:

• Parents: 32 and 34
• Children: 5 and 7
• Assets: $350,000 (including super)
• Concerns: Grandparents too old, siblings too far

Solution:

• Guardian: Close friends who are also parents, same suburb
• Alternates: Mum's sister (interstate), then dad's brother
• Trust: Vesting at 25, with education payments from 18
• Trustee: Guardian's spouse (separation of roles light-touch)
• Guardian support: $25,000 initial, ongoing expenses from trust

Scenario 2: Blended Family with Complex Needs

The Thompson Family:

• Parents: Second marriage for both
• His children: 14 and 16 (live with ex-wife, visit weekends)
• Her children: 8 and 10 (live with them full-time)
• Combined assets: $1.2M

Solution:

• His will: Guardian for his children only if ex-wife cannot serve
• Her will: Guardian for her children (her sister)
• Separate trusts: Each parent's trust for their own children
• Professional trustee: For his children (relationship with ex-wife complicated)
• Family trustee: For her children (her brother-in-law)

Scenario 3: Single Parent with Estranged Ex

Sarah's Situation:

• Single mum, divorced 3 years
• Children: 9 and 11
• Ex-husband: Minimal contact, unreliable, history of substance abuse
• Assets: $280,000 (including life insurance)

Solution:

• Will clearly nominates sister as guardian
• Detailed documentation of why ex-husband unsuitable
• Letter explaining concerns for court if ex challenges
• Trust vesting at 25 with sister as trustee
• No direct nomination for ex (let court decide if he challenges)
• Life insurance made payable to estate (into trust)

Scenario 4: Child with Special Needs

The Martinez Family:

• Parents: 45 and 47
• Children: 12 (neurotypical), 15 (autism, moderate support needs)
• Assets: $800,000

Solution:

• Same guardian for both (keeps siblings together)
• Guardian: Parents' siblings jointly (shared responsibility)
• Separate trusts: Standard trust for 12-year-old; lifetime trust for 15-year-old
• Professional trustee: For special needs child (complexity)
• Special disability trust: Considered but decided standard trust better
• Detailed letter: Extensive information about 15-year-old's needs, routines, therapies

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

• Blended Family Will Planning – When children from different relationships
• Testamentary Trusts Australia – Detailed trust guidance
• Will Executor Role – Choosing who administers your estate
• How to Update Your Will – Updating after children born
• Superannuation and Your Will – Super planning
• No Will Intestacy – What happens without a will

Further Resources

Government Resources

• Family Court of Australia
• Federal Circuit and Family Court

State Public Trustees

• NSW Trustee & Guardian
• State Trustees Victoria
• Public Trustee Queensland
• Public Trustee SA
• Public Trustee WA
• Public Trustee Tasmania
• ACT Public Trustee and Guardian
• NT Public Trustee

Legal Aid

• Victoria Legal Aid – Wills
• Legal Aid NSW
• Legal Aid Queensland

Getting Started with WillBuddy

WillBuddy's guided process helps parents appoint guardians and set up appropriate financial structures for minor children. We ask about your family situation, help you think through guardian choices, and hold your children's inheritance on trust until the age you choose.

Our system guides you through:

• Guardian selection considerations
• Testamentary trust setup
• Appropriate vesting ages
• Guardian support provisions
• Super nomination alignment