Not a fun topic, but a really important one
Let’s be honest—no one likes thinking about what would happen if they weren’t around to raise their kids. It’s uncomfortable, a bit morbid, and something we all quietly hope never becomes relevant.
But here’s the truth: if you’ve got young kids and a Will that doesn’t name a guardian… you’re leaving a pretty big question mark behind. And the court? Well, they’ll do their best. But it may not be the decision you’d have made.
So, yeah. Not exactly a cheery topic—but one worth sorting.
What does “guardian” actually mean in a Will?
Basically, when you appoint a guardian in your Will, you’re naming the person (or people) who’ll take over raising your children if you pass away before they’re 18.
That means day-to-day care. School. Bedtimes. Whether they’re allowed a phone before Year 9. All of it.
Now, just to clear something up—this doesn’t kick in unless both legal parents have passed. If one parent’s still around, they’ll usually have automatic parental responsibility. But if both of you are gone? That’s where your nominated guardian comes in.
Can anyone be a guardian?
Short answer? Not quite anyone, but you’ve got a fair bit of freedom.
You can choose a family member, a friend, your brother who lives in Perth with three cats and a knack for sourdough baking—doesn’t matter, as long as they’re over 18 and mentally capable.
But here’s the catch: just because you nominate someone doesn’t guarantee they’ll take the role. Guardianship is still subject to the Family Court’s final say. If there’s a dispute (say, a relative challenges the appointment), the Court can step in and override it.
That said—if your Will clearly sets out your reasons, and your guardian is fit and willing? The Court usually respects that.
Choosing the right person—this part’s tricky
Here’s where a lot of people get stuck. You start thinking about who to choose, and suddenly you’re spiralling.
Your sister’s great with the kids… but she’s got three of her own and lives interstate. Your best mate would love them to bits, but they’re renting a tiny flat and have a hectic job. Your mum's lovely, but she’s 76 and slowing down.
It’s a lot.
And there’s no perfect answer, by the way. Just the person (or pair) you trust to love your kids, guide them with your values, and keep things as steady as possible in what would already be a pretty overwhelming time.
Pro tip: talk to them first. Let them know what you’re thinking. It’s not something you want to spring on someone posthumously, trust me.
What happens if you don’t name a guardian?
If there’s no guardian in your Will, the Court has to figure it out after you’re gone. That could mean a relative applies. Or two relatives. Or maybe nobody steps forward, and the State gets involved.
Thing is, without your voice in the mix, they’ve got to guess your intentions. That might lead to a decision you’d never have made. Kids might end up with someone they barely know—or separated from each other if multiple parties apply.
And that’s just… not ideal.
Okay, so how do you actually appoint a guardian?
Pretty straightforward, legally speaking.
You need a valid Will. In that Will, you name your chosen guardian(s) and ideally include a brief explanation—something that gives the Court context if they ever need to review it.
Some people also write a separate letter of wishes. Not legally binding, but useful. It can include things like preferred schools, religion, how you’d like your kids raised, stuff about extended family contact. Those little things that matter in daily life.
Now, here’s where it gets interesting: you can appoint backup guardians too. Like a Plan B. If your first choice can't or won’t take it on, you’ve got another trusted option ready to go.
Worth noting: if you’re part of a blended family, or there are step-kids involved, this all gets a bit more complex. Might be worth a proper sit-down with someone who knows family law inside out.
Can a guardian also be the executor?
Yeah, they can. But it’s not always the best setup. Think about it—one person managing the estate and raising the kids? That’s a big load.
Sometimes it makes more sense to separate those roles. Let someone else handle the finances, while your guardian focuses on the parenting side of things.
What if my guardian says no?
Happens more often than you'd think.
Someone might be honoured you asked, but just not feel up to it. Maybe it’s a timing thing, or they’ve had changes in their own life.
Good news is: they’re allowed to decline. You’d want them to, rather than take it on reluctantly. That’s why those backup options are so important.
Actually—let me clarify that. They can’t pre-emptively reject the role before you die. But once the time comes, they can step aside, and the Court will move to the next nominated person (if you’ve listed one) or appoint someone appropriate.
Common myths (and the real story)
“I don’t need a guardian listed, my family will sort it out.”
Maybe. But it could get messy, especially if people disagree or live far apart.
“The godparent automatically becomes the guardian.”
Nope. Godparenting is symbolic, not legal.
“It’ll be obvious who should take them.”
Not always. Families can have very different ideas about what “best interests” looks like.
So what does this mean for you?
Honestly? If you’ve got kids under 18 and a Will that doesn’t name a guardian—it’s time to sort that out. Doesn’t need to be dramatic. Just get the paperwork done, have the tough convo with your chosen person, and breathe a bit easier knowing your kids are protected if the unthinkable happens.
Life’s unpredictable. But this bit? You can control it.
FAQs
Can I change the guardian later on?
Yep, anytime. Just update your Will. Life changes, people move, relationships shift—it’s smart to review things every few years.
Do both parents have to agree on the same guardian?
Ideally, yes. Otherwise, if you each nominate different people and pass away together, the Court has to decide. Not ideal.
Can I appoint more than one guardian?
Yes, you can appoint a couple (like your brother and his partner) or even two individuals to share the role. Just make sure they’re on the same page about how they'd raise your kids.
What happens if the appointed guardian lives overseas?
It’s possible, but adds complications. Immigration, schooling, emotional disruption—it’s a lot to navigate. Best to talk that one through with a lawyer before locking it in.
Is a lawyer really necessary for this?
Look, there are DIY options out there. But when you’re dealing with something as big as your kids’ future… having a proper consult with a lawyer who handles Wills and estates? That’s the smart move.
Need to talk it through? Chat to a lawyer who actually gets this stuff.
Someone who knows estate planning inside out, understands how Aussie families really work, and can help you make decisions that stick. A solid legal consult now could save your kids—and your family—a mountain of stress later.
Legal disclaimer:
This article is general information only and not legal advice. Always consult a qualified lawyer for advice tailored to your situation.