Appointing a Guardian for Your Child in Your Will

You are filling in your will, and you reach the one question no parent wants to sit with. If something happened to both of us, who would raise our kids?

Here is the short answer. You appoint a guardian by naming that person in a clause in your will. The appointment takes effect only if both parents have died, and it ends when your child turns 18. It is not automatically binding, a court can still step in, but it carries real weight, and there is more you can lock down than most parents realise.

Let me walk you through how it actually works, who you can name, and the part people most often get wrong.

What is a testamentary guardian?

The person you name in your will to raise your children if both parents die is called a testamentary guardian. Testamentary simply means it is set out in your will.

Two things define the role:

• It takes effect only on the death of the last surviving parent. While one parent is alive, it usually does nothing.
• It ends when your child turns 18.

A guardian is the person who raises your child. That is a different job from managing your child’s money, and keeping the two apart is where a lot of the real protection sits. More on that further down.

How to appoint a guardian for your child in your will

You appoint a guardian with a clear clause in your will that names the person you want. Name an alternate as well, a second choice in case your first choice cannot take it on when the time comes.

Here is the part people most often get wrong. Naming someone as a godparent does nothing in law. A godparent is not your child’s legal guardian. Neither is a wish written on a note in a drawer, nor a promise made to a sibling over dinner. If the appointment is not in your will, it does not carry legal weight.

In New South Wales, the power to appoint a guardian by will comes from section 14 of the Guardianship of Infants Act 1916 (NSW). Other states and territories have their own equivalent Acts, so if your will was made interstate it pays to check which one applies to you.

There is one honest caveat you should hear before you assume this is fully settled.

Is appointing a guardian binding, and can a court override it?

Not absolutely binding, no. You might assume that once you have named a guardian in your will, the decision is locked in. It is not. A court can override your choice and decide who your child lives with, based on the child’s best interests.

That sits under the Family Law Act 1975 (Cth), which sets out parental responsibility and assesses what is in a child’s best interests. Reforms in force in 2024 removed the old presumption of equal shared parental responsibility, so best interests are now weighed without that starting assumption.

This is the reframe worth holding onto. The fact that a court can step in does not make your will pointless. In practice, a court will take a considered choice you have set out in your will into account. Naming your preferred guardian, and an alternate, still does real work. It tells everyone, including the court, who you trusted to raise your children.

Where formal parenting orders were already in place before a parent died, care does not automatically pass to the surviving parent. Those situations are dealt with under the Family Law Act. The court that decides these matters is the Federal Circuit and Family Court of Australia.

Who can you appoint as a guardian?

Any adult over 18 who agrees to take on the role. That is the eligibility rule, and it is that simple.

Most parents think first of a sibling, a close friend, or the child’s grandparents. There is no rule that it has to be family. What matters is that the person is willing, and able, to raise your child the way you would want.

The one thing people forget is the consent part. Ask the person first, and have the conversation properly rather than in passing. Raising someone else’s children is a serious commitment, and the person deserves the chance to think it through before they agree. If they hesitate, that is worth knowing now rather than when the moment comes. That is also why you name an alternate.

What if only one parent dies?

If one parent dies, the surviving parent usually keeps parental responsibility and continues to care for the child, subject to the child’s best interests. Your testamentary guardian appointment generally does not take effect while one parent is still alive.

The exception is where parenting orders were already in place. In that situation, care does not automatically pass to the surviving parent. If you and your ex have court orders about the children, this is worth getting proper advice on, because your will and those orders interact.

Guardian versus executor and trustee: who raises the child, who manages the money

These are two different jobs, and it is usually better to keep them in different hands.

• The guardian raises your child.
• The executor and trustee manage your estate and your child’s inheritance.

Here is the reframe that matters most for parents. Even in the area you cannot fully control, who raises your child, because a court can step in, there is one thing you can control completely. You choose who manages the money you leave for your children. That means an ex, or the wrong person, never ends up controlling their inheritance.

You do that with a testamentary trust: a trust set up in your will that holds your child’s inheritance and is run by a trustee you choose, releasing funds for the child’s care, education and needs. So while the question of who raises your child can be tested in court, the question of who holds the money is one you settle yourself.

What happens if you don’t appoint a guardian?

If you name no one, and there is no surviving parent, the decision is left to a court. The people who love your child, grandparents, an aunt or uncle, a close friend, may have to apply to the court and work it out between them, at the very time everyone is grieving.

That is the real cost of leaving it blank. Naming a guardian now spares your family that uncertainty later.

Choosing the right guardian

Once you know the mechanism, the harder question is who. A few things worth weighing:

• Values and parenting approach. Someone whose approach to raising children lines up with yours.
• Age and health. Someone who can realistically see the job through to your child’s adulthood. Elderly grandparents may not be the practical long-term choice.
• Location. A guardian in another city or state may mean a change of school and the loss of friendships at an already hard time. Weigh the disruption.
• An existing bond with your child. Someone your child already knows and trusts makes a hard time a little less frightening for them.
• An alternate. Always name a second choice. Circumstances change, and your first choice may not be able to act when the time comes.

Alongside your will, you can leave a letter of wishes, a non-binding note that guides your guardian and trustee on how you would want your children raised. It does not carry the legal force of the will, but it gives the people stepping in real direction.

The bottom line

You cannot hand a court a fixed instruction on who raises your child. What you can do is name your preferred guardian and an alternate, so your wishes are clear and carry weight, and choose exactly who controls the money you leave behind.

Thinking about this at all means you are already doing right by your kids. It is not a pleasant thing to plan for, but it is one of the most protective steps you can take. Get the clause right, name an alternate, and decide who manages the inheritance, and you take the uncertainty off your family’s shoulders.

If you would like help setting it up properly, reach out to me and my team. Our wills and estates lawyers can make sure your will names your guardian and protects your children’s inheritance the way you intend. Call 1300 614 732 or send us a message. No pressure, just clear advice.