Who Will Look After Your Children If You Die? Understanding Guardianship in Queensland
One of the biggest questions parents face when thinking about the future is who would care for their children if they were no longer here.
You might assume your partner would take care of everything if you died first. Or you might be a single parent who worries about what would happen to your children if you were no longer here.
Perhaps you have already decided who you would trust to raise your children. You might even have spoken to that person about it.
There is an important step that can help put your wishes on record: appointing a testamentary guardian in your Will.
In Queensland, you can appoint someone in your Will to be a testamentary guardian of your children. However, understanding what that appointment means, when it takes effect, and how it interacts with the rights of a surviving parent is essential.
Here is what Queensland parents need to know about guardianship, choosing a suitable guardian, and making arrangements for their children's future.
Can you choose who looks after your children if you die?
Yes. Under Queensland law, a parent or guardian can appoint a person as a testamentary guardian of a child in their Will.
A testamentary guardian is someone appointed under a Will to have certain legal responsibilities for a child's long-term care, welfare, and development.
These responsibilities can include making decisions about matters such as:
Your child's education.
Their religious upbringing.
Their healthcare.
Other important decisions affecting their long-term welfare and development.
It is an important way to record who you would want involved in decisions about your child's future if you were to die.
However, appointing a testamentary guardian does not automatically mean your child will live with that person. The legal position depends on your family's circumstances, including whether your child's other parent is alive and whether there are relevant court orders.
What happens to your children if one parent dies?
For many parents, this is the first question that comes to mind.
If you and your child's other parent are both alive, you might assume that your partner would simply continue raising your children if you died. In many families, that is exactly what would happen.
The position becomes more complicated when parents are separated, there are existing parenting orders, or the person you would choose to care for your children is not their other parent.
If your child's other parent is alive
If you die and your child's other parent survives you, that parent will generally remain responsible for the child, subject to any applicable parenting orders and the circumstances of the family.
Appointing someone else as a testamentary guardian does not, by itself, remove the surviving parent's parental responsibility or give your chosen guardian an automatic right to have your child live with them.
Under Queensland legislation, a testamentary guardian may have responsibilities for decisions about the child's long-term care, welfare, and development. The legislation also deals with how a testamentary guardian acts alongside other guardians.
If you want someone other than your child's other parent to care for your child, it is important to obtain advice about your particular circumstances. A Will cannot simply be used to override the surviving parent's legal position.
If both parents die
If neither parent survives, choosing a testamentary guardian becomes especially important.
You can nominate someone you trust to take on the role of testamentary guardian in your Will. The appointment can provide a clear indication of your wishes about who should be involved in your child's future.
Where the appointment takes effect and who has authority for your child's daily care will depend on the applicable law and any existing court orders.
If there is a dispute about who should care for a child, a court may need to become involved. The child's best interests are central to decisions about their care.
This is one reason it is worth making your wishes clear in your Will and obtaining legal advice if your family circumstances are complex.
Who should you choose as your children's guardian?
Choosing a guardian is a deeply personal decision. There is no single right answer for every family.
You might immediately think of your parents, a sibling, or your closest friend. They may be wonderful choices, but it is worth taking time to consider what raising your children would involve.
Here are some questions to help you think it through.
1. Would they raise your children in a way that reflects your values?
Consider the things that matter most to you as a parent.
How would you want your children to be raised? What would you want their education, family relationships, cultural connections, and general upbringing to look like?
Your chosen guardian does not need to agree with you about every little thing. What matters is that you trust them to make thoughtful decisions about your children's lives.
2. Do they have the capacity to care for your children?
Think about their existing responsibilities, health, work commitments, and family circumstances.
Would they realistically be able to take on the practical and emotional demands of raising your children?
A person can love your children dearly and still not be in a position to become their full-time carer. It is worth having an honest conversation about what the role could involve.
3. Would your children feel safe and supported with them?
Think about the relationship your children already have with the person.
Would your children feel comfortable turning to them for help? Would they provide a stable, loving environment?
You should also consider how the person might support your children through grief and the significant changes that would follow your death.
4. Would your children be able to stay together?
If you have more than one child, consider whether your chosen guardian could care for all of them together.
Keeping siblings together may be an important consideration for your family, particularly during an already difficult time.
5. Are they willing to take on the responsibility?
This is a conversation you should have before naming someone in your Will.
Being appointed as a guardian is a significant responsibility. Give the person an opportunity to think about what it would mean for them and your children.
You should also consider nominating at least one alternative in case your first choice is unable or unwilling to act when the time comes.
Can you appoint more than one guardian?
Queensland law allows a parent or guardian to appoint a person as a testamentary guardian in their Will. Where a child has more than one guardian, the law addresses how those guardians must exercise their responsibilities.
If you are considering appointing more than one person, it is important to think about how the arrangement would work in practice.
For example, you might be considering your sister and her partner, or two family members who live in different households.
Would they be able to make important decisions together? Would they have a shared understanding of how your children should be raised? What would happen if they disagreed? If nominating two people in a relationship, what would happen if they separate or divorce?
The right arrangement will depend on your circumstances. Your estate planning lawyer can explain the available options and help you consider the practical implications of your choices.
How can you help your chosen guardian understand your wishes?
Choosing someone you trust to raise your children is an important step. You can also think about what you would want that person to know about your children, your parenting values, and your hopes for their future.
A Letter of Wishes gives you an opportunity to record this personal guidance.
While your Will can formally appoint your testamentary guardian, a Letter of Wishes allows you to explain the things that matter to you as a parent. It can provide valuable insight for your chosen guardian as they navigate decisions about your children's upbringing.
You might want to share your thoughts about:
Your parenting values: the principles you hope will guide your children's upbringing and the lessons you want them to carry through life.
Education and interests: your hopes for their education, sporting commitments, creative pursuits, and other activities that bring them joy.
Family connections and traditions: the relationships, family traditions, and celebrations you would like your children to remain connected to.
Individual needs: what helps each child feel safe and supported, their personalities, and the things that make each of them unique.
Your hopes for their future: the values, experiences, and opportunities you hope they will have as they grow up.
You could also include practical information or personal messages you would want your children to receive at different stages of their lives.
The purpose is not to give your chosen guardian a rigid set of instructions. It is to help them understand your wishes and the things you would want them to consider when making decisions for your children.
A Letter of Wishes is not legally binding, and it does not override the legal rights of a surviving parent or the operation of relevant court orders. It can, however, be a valuable source of guidance for the person you have nominated.
Knowing what you want to communicate is one thing. Finding the time to sit down and put it into words can be another. This is where the Estate Workbook included in our Will Value Packages can help. It helps you organise your thoughts and document the things you want your chosen guardian to understand.
Your Will records the formal appointment. Your Letter of Wishes gives you space to explain the hopes, values, and personal considerations behind it.
Together, these can help you prepare a more thoughtful plan for your children's future.
What if you are a single parent or separated from your child's other parent?
If you are a single parent, or you and your child's other parent are separated, guardianship planning deserves particular attention.
You may have clear wishes about who should care for your children if you die. You may also have concerns about your child's relationship with their other parent, existing parenting arrangements, or the possibility of family disagreements.
Your Will is an important part of recording your wishes, but it does not automatically determine who your child will live with in every situation.
The legal effect of a testamentary guardian appointment depends on matters such as existing parental responsibility, court orders, and the circumstances at the time of your death.
If you have parenting orders, a family law agreement, or concerns about who would care for your children, seek advice about how your estate planning should work alongside those arrangements.
A properly considered plan can help clarify your intentions and identify issues that may need to be addressed while you are alive.
What if your chosen guardian lives interstate or overseas?
You may have a close family member or friend who would be your first choice, even though they live outside Queensland or Australia.
Living elsewhere does not automatically mean someone is unsuitable to be appointed as a testamentary guardian. However, it is important to consider the practical and legal issues involved.
For example:
Would your children need to move away from their current home, school, and support network?
Would the proposed guardian be able to provide the care your children need?
Could there be immigration, residency, or international relocation issues?
Would a move be consistent with your children's needs and best interests?
Would someone need to care for your children in the interim until travel is finalised?
These considerations do not necessarily rule out your preferred person. They are reasons to obtain advice and plan carefully.
Does appointing a guardian in your Will guarantee your wishes will be followed?
No appointment can guarantee that every future circumstance will unfold as you intend.
A testamentary guardian appointment is a formal way to record your wishes and establish the legal role of the person you nominate. Its effect is governed by Queensland law.
The appointment does not automatically give that person the right to have your child live with them if another parent survives, and it does not remove the court's powers in relation to a child's care.
If a dispute arises, the relevant legal arrangements and the child's best interests will need to be considered.
You can help make your intentions clearer by choosing an appropriate guardian, discussing the role with them, and ensuring your Will accurately reflects your wishes.
Why guardianship planning should be part of your estate plan
When parents think about making a Will, they often focus on who will inherit their home, savings, and other assets.
Those decisions matter. If you have children, however, your estate plan should also consider the people who would care for them and make important decisions about their future.
Your Will can address several related issues, including:
Guardianship: Who you would want to appoint as a testamentary guardian.
Financial provision: How you want your assets to benefit your children.
Management of inheritances: Who should manage money or other assets intended for your children, and how those arrangements should operate.
Contingency planning: What should happen if the people you nominate are unable or unwilling to act.
These arrangements need to work together. For example, the person you trust to raise your children may not be the person you would choose to manage a substantial inheritance on their behalf.
Your estate planning lawyer can help you consider whether different people should take on these responsibilities and how the arrangements can be documented appropriately.
Frequently asked questions about guardianship in Queensland
Can I name my children's guardian in my Will in Queensland?
Yes. Under Queensland law, a parent or guardian can appoint a person as a testamentary guardian of a child in their Will. The appointment's effect depends on the circumstances, including whether another parent survives.
Will my children automatically live with the person I nominate?
No. Appointing a testamentary guardian does not automatically mean your children will live with that person. The legal position depends on matters such as whether another parent survives and whether there are relevant court orders.
Can I appoint my sister, brother, or a friend as my children's guardian?
You can nominate a suitable person as a testamentary guardian in your Will. Consider their relationship with your children, their willingness and ability to take on the responsibility, and the practical arrangements involved.
What happens if my chosen guardian cannot look after my children?
Circumstances can change, so it is sensible to consider an alternative appointment and review your Will as your family circumstances change. The legal position will depend on the terms of your Will and the circumstances at the time.
Should separated parents make guardianship arrangements in their Wills?
Separated parents should consider their estate planning carefully, particularly if parenting orders or other arrangements are in place. A Will does not automatically override a surviving parent's legal position. Legal advice can help clarify how guardianship planning interacts with existing parenting arrangements.
Does appointing a guardian also mean they will manage my children's inheritance?
Not necessarily. Decisions about a child's care and the management of their inheritance are separate responsibilities. Your Will should be structured to address who will manage assets intended for your children and how those assets will be held and distributed.
Have you thought about who would care for your children?
Thinking about your own death can be uncomfortable, particularly when your children are young. It can be difficult to imagine someone else raising them or making decisions about their future.
Taking the time to consider these arrangements is one way to put your children's needs first.
You do not need to predict every possible scenario. You do need to think carefully about who you trust, what you want for your children, and how your Will can record your wishes.
At Sun Wills & Estates, we help Queensland families make informed decisions about their estate planning, including guardianship, financial provision for children, and the management of inheritances.
If you have children and have not yet addressed guardianship in your Will, now is a good time to review your arrangements.
Get in touch with Sun Wills & Estates to discuss an estate plan that considers your family's circumstances and your wishes for your children's future.
The information in this article is provided for general information and educational purposes only. It is not legal advice and should not be relied upon as a substitute for advice about your individual circumstances.
Estate planning and succession laws can be complex and may vary depending on your circumstances. The information in this article is current as at the date of publication and may change over time.
If you need advice about your own circumstances, you should obtain independent legal advice from a qualified lawyer.
Everything you to need to know about appointing a guardian for your child, all in one place.
Choosing who would care for your child if you died is one of the biggest decisions you may need to make as a parent.