Appointing a Guardian in Your Will | Australian Parents Guide

Why Guardianship Matters

If you have children under 18, there is one question that matters more than any other in your estate plan: who will raise them if you cannot?

It is an uncomfortable question. Nobody wants to imagine their children growing up without them. But the alternative — leaving that decision to a court that has never met your family — is far worse.

A guardian nomination in your Will is the only legal way to express your preference for who should care for your children. Without it, the Family Court decides. The court will do its best, but it does not know your values, your family dynamics, or the promises you have made to your children.

This guide walks you through everything you need to know: what a guardian does, who can serve, how to choose the right person, what happens if you do not nominate anyone, and how to have the conversation with the person you choose.

What Is a Guardian in a Will?

Legal Guardian vs Testamentary Guardian

A testamentary guardian is a person you nominate in your Will to care for your minor children if both parents die. The nomination only takes effect when the last surviving parent dies — it has no legal force while either parent is alive.

This is different from a legal guardian, which is a broader term for anyone with legal authority to care for a child. When people say “appointing a guardian in your Will,” they mean a testamentary guardian.

What a Guardian Does

A testamentary guardian assumes the day-to-day parenting responsibilities for your children:

• Providing a home — the child lives with the guardian
• Making daily decisions — schooling, healthcare, activities, discipline
• Providing emotional support — stability during an incredibly difficult time
• Managing the child’s welfare — ensuring their physical and emotional needs are met

A guardian does not automatically manage the child’s inheritance — that is the executor’s role (or a trustee’s, if you set up a testamentary trust). More on this distinction below.

Duration

Guardianship lasts until the child turns 18. At that point, the child becomes a legal adult and the guardianship ends automatically.

Who Can Be a Guardian?

There are few formal legal requirements for a guardian in most Australian states:

• Age: Must be 18 or older
• Willingness: Must be willing to accept the role (a court will not force someone)
• Capacity: Must be capable of caring for a child
• Character: Must be a fit and proper person (no relevant criminal history that would endanger the child)

A guardian can be:

• A single person or a couple
• A family member or a close friend
• Someone who lives in a different state (though geography matters — see below)

There is no requirement that a guardian be a blood relative. What matters is their ability and willingness to provide a safe, loving home.

How to Choose a Guardian

This is the hardest part. There is no formula — it comes down to who you trust most to raise your children in the way you would. Here are the factors that matter.

Values and Parenting Style

Mark and Lisa have two young children and share strong views on education, discipline, and screen time. Mark’s sister, Angela, has a similar approach to parenting and shares their values. Lisa’s brother, Ryan, is a wonderful uncle but has a very different lifestyle and parenting philosophy. They chose Angela.

The question is not “who loves my children?” — many people do. The question is: “who would raise them most similarly to the way I would?”

Financial Stability

Your guardian does not need to be wealthy, especially if you leave funds for the children’s care (see the Financial Support section below). But they should be financially stable enough that taking on additional children would not create a crisis.

Geographic Location

If your children are settled in a school, have close friendships, and are connected to a community, a guardian who lives nearby minimises disruption during an already devastating time. A guardian in another state means your children may need to change schools, leave friends, and adjust to a new environment on top of grieving.

That said, the right person in another city is better than the wrong person next door.

Relationship with Your Children

A guardian your children already know and trust will make the transition less traumatic. Regular contact — visits, holidays, video calls — builds the bond that will matter most if the guardianship ever takes effect.

Age and Health

Consider whether your chosen guardian will still be able to care for active children in 5, 10, or 15 years. Grandparents are often a natural first thought, but a 70-year-old caring for a 5-year-old until they are 18 may not be realistic.

Backup Guardian

Always nominate a backup guardian in case your first choice is unable or unwilling to serve when the time comes. Circumstances change — your chosen guardian may develop health issues, move overseas, or have their own family pressures.

Appointing a Guardian in Your Will

The process is straightforward:

1. Decide who you want — work through the factors above with your partner (if applicable)
2. Talk to them first — never nominate someone without their knowledge and agreement (see the conversation guide below)
3. Include the nomination in your Will — both parents should nominate the same person in their individual Wills
4. Name a backup — in case your first choice cannot serve
5. Sign and witness your Will properly according to your state’s requirements

With ezyWill, the guardian nomination is part of the guided Will questionnaire. You will be prompted to enter your chosen guardian’s details, including a backup, and the nomination is included in your Will automatically. Create your Will now and see how the process works.

Important: If you and your partner disagree on who should be guardian, resolve it before making your Wills. Conflicting nominations in separate Wills can lead to a court dispute — exactly the situation you are trying to avoid.

What Happens If You Do Not Appoint a Guardian

If both parents die without nominating a guardian, the Family Court decides who will raise the children. The court follows the principle of the best interests of the child, considering:

• Who has an existing relationship with the child
• The child’s own wishes (if they are old enough to express them — typically 12+)
• Each applicant’s ability to provide for the child’s needs
• The child’s cultural, linguistic, and religious background
• The benefit of maintaining sibling relationships

This process sounds reasonable, but in practice it can be:

• Slow — court proceedings take months, during which children are in temporary care
• Divisive — multiple family members may apply, creating a custody dispute during a period of grief
• Unpredictable — the court may choose someone you would never have chosen
• Expensive — contested guardianship applications generate legal fees that come from the estate

Jess and Tom did not have a Will. When they died in a car accident, Tom’s mother and Jess’s sister both applied for guardianship of their two children. The dispute took 11 months. The children were placed in temporary foster care while the court decided. A single paragraph in a Will could have prevented the entire ordeal.

Can Your Guardian Choice Be Overridden?

Yes, but it is rare. A testamentary guardian nomination is a strong expression of your wishes, and courts give it significant weight. However, the Family Court retains the power to override your nomination if it determines that your chosen guardian is not in the best interests of the child.

This might happen if:

• Your chosen guardian has developed a serious health condition since you made your Will
• There are concerns about the guardian’s fitness (e.g., criminal convictions, substance abuse)
• The child has a strong preference for a different arrangement (older children)
• Circumstances have changed dramatically since the Will was made

In practice, a well-considered guardian nomination in a current Will is rarely overturned. The court recognises that parents who took the time to nominate a guardian did so with their children’s best interests in mind.

Financial Support for Your Guardian

Raising additional children is expensive. Your guardian should not have to bear that cost alone. There are several ways to ensure financial support:

Leave Funds in Your Will

You can direct that part of your estate be used for your children’s care — school fees, clothing, medical costs, extracurricular activities, and daily living expenses.

Set Up a Testamentary Trust

A testamentary trust is created through your Will and holds your children’s inheritance until they reach a specified age (e.g., 21 or 25). A trustee manages the funds and makes distributions for the children’s benefit. This protects the inheritance from being spent too quickly and provides ongoing financial support for the guardian.

ezyWill allows you to include testamentary trust provisions in your Will, specifying the age at which your children receive their full inheritance.

Life Insurance

Adequate life insurance is essential if you have dependants. Check whether your super fund includes cover — many do by default — and ensure the amount would cover your children’s living expenses, education, and care until age 18.

For more on coordinating these elements, see our estate planning guide for families.

Guardian vs Executor: Different Roles

Parents often confuse these two roles. They can be the same person, but they do not have to be — and in many cases, they should not be.

Why separate them? The best parent figure may not be the best financial manager, and vice versa. Appointing different people for each role ensures your children get the best care while your estate is managed competently.

Example: Sarah and Ben appointed Sarah’s sister, Kate, as guardian (warm, great with kids, lives nearby) and Ben’s brother, David, as executor (an accountant, detail-oriented, financially savvy). Kate raises the children; David manages the money and ensures funds are available for their care.

How to Talk to Your Chosen Guardian

Nominating someone as guardian without telling them is a mistake. They need to agree, understand the responsibility, and have time to consider whether they can commit.

Starting the Conversation

Here is a simple way to open the discussion:

“We’ve been working on our estate plan, and we wanted to ask you something important. If anything happened to both of us, would you be willing to be the guardian for [children’s names]? We’ve thought about it carefully, and there’s nobody we trust more. We completely understand if you need time to think about it.”

What to Discuss

• Your expectations — schooling, religious or cultural upbringing, parenting approach
• Financial support — reassure them you are leaving funds for the children’s care
• Practical logistics — where the children would live, school arrangements
• Their concerns — listen openly; a reluctant guardian is not the right guardian

There is no legal requirement for the guardian to sign your Will. Verbal agreement is sufficient.

Updating Your Guardian Choice

Your guardian nomination is not permanent. Review it whenever:

• Your chosen guardian’s circumstances change (health, location, relationship)
• Your children’s needs change (special requirements, age-related preferences)
• You have additional children
• Your relationship with the guardian changes
• The guardian asks to be released from the nomination

Updating is simple: create a new Will with the updated guardian nomination. The most recent valid Will supersedes all previous versions. With ezyWill, you can update your Will unlimited times as part of your $99/year plan.

For a complete list of life events that should trigger a Will review, see our new baby estate planning checklist.

State-Specific Rules

Guardian nominations are recognised in all Australian states and territories, but the governing legislation differs:

Note: In all states, the Family Court retains overriding jurisdiction over children’s welfare. Your Will nomination is the strongest expression of your wishes, but the court’s paramount concern is always the best interests of the child.

Frequently Asked Questions

Can I appoint a guardian if I am a single parent?

Yes, and it is especially important. As a single parent, you may be the only person with legal parental responsibility. If you die without nominating a guardian, the court decides who raises your child with no guidance from you at all.

Can I appoint a couple as joint guardians?

Yes. You can nominate a couple (married or de facto) as joint guardians. If their relationship later breaks down, the guardianship arrangements may need to be reviewed by the court.

Can grandparents be guardians?

Yes, there is no upper age limit. However, consider whether they will be physically able to care for active children for the full duration — potentially 15+ years. Many parents choose grandparents as a short-term option and nominate a younger backup guardian.

What if the other parent is still alive?

A testamentary guardian nomination only takes effect when the last surviving parent dies. If one parent dies, the surviving parent retains full parental responsibility regardless of what the Will says.

Can a guardian be someone who lives overseas?

Legally, yes. Practically, this means your children would need to relocate to another country. Consider whether this is truly in their best interests, and always nominate a local backup guardian.

What if I cannot agree with my partner on a guardian?

Do not leave it unresolved. An unresolved disagreement means neither parent nominates anyone, which is the worst outcome. Consider mediation or counselling to work through the decision. Compromise on a mutually acceptable option rather than defaulting to no nomination at all.

Does a guardian become the legal parent?

No. A guardian has parental-type responsibilities but does not become the child’s legal parent. The child retains their birth parents’ names and identity. Adoption is a separate legal process that requires court approval.

Can my child choose their own guardian?

Not formally, but courts will consider the wishes of older children (typically 12+) when making guardianship decisions. Having a conversation with your teenage children about your plans — and listening to their preferences — is good practice.

What happens to guardianship if I remarry?

If you remarry, your existing Will may be revoked (in most states). You need to create a new Will that includes your guardian nomination. Your new spouse does not automatically become the guardian of your children from a previous relationship — that depends on what your Will specifies. For more on this topic, see our guide to blended family estate planning.

How does ezyWill handle guardian nominations?

The ezyWill questionnaire prompts you to nominate a primary guardian and a backup guardian for each child under 18. The nomination is automatically included in your Will with the correct legal language for your state. You can update it anytime. Start your Will now.

This article is for general informational purposes only and does not constitute legal advice. Guardianship and family law provisions differ between Australian states and territories. For advice on your specific circumstances, particularly involving complex custody arrangements or blended families, we recommend consulting a qualified family law solicitor.