Choosing a guardian for your children in your will

What happens to my children if I die?

If your children's other parent is alive, they will usually keep caring for them. Under section 61C of the Family Law Act 1975, each parent of a child under 18 has parental responsibility. State Trustees Victoria notes that when one parent dies, the surviving parent will usually be the child's guardian, unless that isn't in the child's best interests.

If both parents die, or the other parent can't care for them, someone has to step in. If you've named a guardian in your will, that person has legal standing to make the big decisions. If you haven't, relatives or friends can apply, and the court decides who the guardian will be, with no record of who you would have picked.

How does a testamentary guardian work in Australia?

A testamentary guardian is someone you appoint in your will to take on parental responsibility for your children after your death. Every state and territory has a law allowing it, but they differ on what happens if the other parent is still alive.

Most parents want the guardian to step in only when there's no other parent. A Willies will is drafted that way: the appointment takes effect if, when you die, no other parent with parental responsibility for your child survives you. If you're separated, or the other parent's role is likely to be disputed, a lawyer can help you plan for it.

The court still has the final say

Under the Family Law Act, a court must treat the child's best interests as the paramount consideration (s 60CA). The surviving parent, a grandparent or anyone else concerned with the child's care, welfare or development can apply for parenting orders (s 65C). In Western Australia these cases go to the Family Court of Western Australia.

Legal Aid NSW puts it plainly: the court will consider your wishes, but it makes orders based on what is best for your children at the time. The person you name can also say no, which is one reason to ask them first.

What does a guardian actually do?

A guardian makes the long-term decisions a parent would make. Legal Aid Queensland gives education and religion as examples. Appointing a guardian doesn't necessarily mean your child will live with that person, although in practice it often does.

How to choose a guardian for your child

There's no perfect choice, but these questions help:

• Do your children already have a bond with them? A familiar adult makes a very hard time easier.
• Do they share your values? Think about schooling, faith, culture and how they'd raise children day to day.
• How big a change would it be? A move to another city or a very different household means new schools and lost friends on top of losing a parent.
• Can they take it on? Physically, financially and emotionally: their age and health, their own children and their work.
• Is it one person or a couple? You can name either. If you name a couple, think about what you'd want if they separated.
• Have they said yes? Ask before you name them.

A guardian must be an adult who can make decisions in your child's best interests. Try not to let money decide it: you can leave money to cover the cost of raising your children, as explained below.

Name a backup guardian

Your first choice could die before you, fall ill or have their own circumstances change. A backup guardian steps in if they can't act. In a Willies will you can name one guardian or two acting together, plus a backup. If you name two and one dies or can't act, the other can carry on alone.

Guardian vs the person who manages the money

Raising your children and managing their inheritance are different jobs. As State Trustees Victoria explains, your executor or trustee pays out money for your child under the terms of your will, while the guardian makes the lifestyle decisions.

They can be the same person, but many parents split the roles so there's a second adult involved in the big money decisions. In some states a guardian also has powers over a child's property unless it's held on trust, which is another reason for your will to hold a child's inheritance on trust rather than leave it to them outright.

How do I leave money for my children?

• Choose the age they inherit. In a Willies will you choose 18, 21 or 25. Until then your executor holds the inheritance on trust and can use it for their maintenance, education and care.
• Consider a testamentary trust. For a larger estate, a testamentary trust gives more protection and lets income paid to children under 18 be taxed at adult rates. It's part of the Complete Will.
• Check your super and life insurance. These are usually paid under your fund's rules and your nomination, not your will. See our guide to binding death benefit nominations.
• Think about the guardian's costs. Some parents also leave the guardian a gift towards extra costs, such as a bigger car or more room at home.

Recording your wishes for their upbringing

Your will can include wishes for the guardian: schooling, faith, staying close to grandparents. In a Willies will these are recorded expressly as wishes, so they guide the guardian without binding anyone.

Longer or more personal guidance, such as your children's routines, health needs or the people who matter to them, sits better in a letter of wishes kept with your will.

Talk to the guardian first

Legal Aid NSW recommends discussing your wishes with the person you choose and with your family, including how you want your children cared for, their education, and their religious and cultural upbringing. It's also worth covering:

• Whether they'd move, or expect your children to move.
• How the costs would be met, and who would manage the money.
• Your children's needs, friendships and any pets.
• Who else in the family should know, so nobody is surprised.

Review your choice when life changes: a new baby, a move, a separation or the guardian's own circumstances. With the Willies Plan you can update your will whenever you need to. Our guide to how to make a will covers the rest of the process.