Appointing Guardians for Minor Children in Your Will

What If Something Happened to You and No One Had Actually Agreed to Raise Your Kids?

Most parents assume they know exactly who'd step in and raise their children if the unthinkable happened, a sibling, a close friend, the kids' grandparents. Far fewer have actually written that decision into a Will, and fewer still have had the conversation with the person they'd expect to say yes. A guardianship nomination is one of the simplest, most emotionally significant clauses a Will can contain, and it's also one of the most commonly left blank, either because the Will itself was never updated after children arrived, or because the conversation felt too difficult to have. This piece covers guardianship of minor children specifically, a different matter to Enduring Guardianship, which covers medical and lifestyle decisions for an adult who loses capacity. Our Wills and EPOA guide touches on that distinction and the broader estate planning picture.

TL;DR

• A guardianship nomination in a Will names who a parent wishes to care for their minor children if both parents die or become unable to care for them.

• A guardian's role is different from an executor's. The guardian raises the children day to day, while the executor administers the estate, and they don't need to be the same person.

• A guardianship nomination in a Will is not automatically legally binding on a court, but it carries genuine weight and is generally given significant consideration in any Family Court decision.

• Nominating a backup guardian matters, since the first choice might be unable or unwilling to take on the role when the time actually comes.

• If no guardian is nominated and both parents die, the Family Court decides who cares for the children, without the guidance a parent's own wishes would have provided.

• Having the conversation with the proposed guardian in advance is genuinely important, since a nomination made without the other person's agreement can create confusion or conflict at the worst possible time.

• Guardianship nominations should be reviewed as circumstances change, a falling-out, a house move, a change in the proposed guardian's own life circumstances, all of which can make an earlier nomination no longer appropriate.

Bottom line: a guardianship nomination is a relatively simple clause to include in a Will, and leaving it blank is one of the more consequential gaps a parent can leave behind, not because it's difficult to fix, but because it's easy to keep postponing.

On This Page

• What a Guardianship Nomination Actually Does

• Guardian vs Executor: Two Different Roles

• Who Can Be Nominated as a Guardian

• Why a Backup Nomination Matters

• What Happens If No Guardian Is Nominated

• Having the Conversation Before You Nominate

• Worked Example: A Nomination That Was Never Discussed

• Common Mistakes

• FAQ

What a Guardianship Nomination Actually Does

A guardianship nomination is a clause within a Will where a parent names who they wish to care for their minor children if both parents die, or in some circumstances, if the surviving parent is unable to care for them. This nomination reflects the parent's genuine wishes and is a formal, written statement of intent, generally given real weight in any subsequent decision about the children's care, even though it isn't automatically binding on a court in every circumstance.

Not sure whether your current Will actually includes a guardianship nomination, or whether it's still up to date? A free 15-minute chat with WIAA can help you check. Call 1800 942 843 or book online.

Bottom line: a guardianship nomination is a clear, documented statement of a parent's wishes for who should raise their children, and having one is considerably better than leaving that decision entirely to chance or to a court with no guidance at all.

Guardian vs Executor: Two Different Roles

These two roles are often confused, but they're genuinely distinct, and don't need to be filled by the same person:

• The executor administers the deceased's estate, managing assets, paying debts, and distributing the estate according to the Will.

• The guardian takes on the day-to-day care and upbringing of minor children, a fundamentally different, ongoing, personal responsibility.

Some parents choose the same person for both roles, but many deliberately choose different people, for example, an older parent or a financially organised sibling as executor, while a different family member or close friend, better suited to actually raising children day to day, takes on the guardian role.

Bottom line: don't assume these two roles need to be the same person, choosing the right fit for each role separately generally produces a better outcome than defaulting to one person for both.

Who Can Be Nominated as a Guardian

Generally, a parent can nominate any adult they trust as a guardian, commonly a family member (grandparent, sibling, aunt or uncle) or a close friend, though the practical suitability of the nomination matters considerably, factors like the proposed guardian's own age, health, existing family and financial circumstances, and genuine willingness to take on the role are all worth thinking through carefully, not just who feels like the obvious emotional choice.

Choosing the right guardian involves weighing genuine practical suitability alongside the emotional connection. A free 15-minute chat can help you think through the full picture. Email clientservices@whatifadvice.com.au or book online.

Bottom line: the right guardian isn't automatically the first person who comes to mind emotionally, it's the person who's genuinely able and willing to take on the practical reality of raising your children.

Why a Backup Nomination Matters

Nominating a backup guardian, a second choice in case the first nominated guardian is unable or unwilling to take on the role when the time comes, whether due to their own health, life circumstances changing, or simply declining, adds a genuinely important layer of certainty. Without a backup nomination, if the first choice can't step in, the situation effectively reverts to having no nomination at all, precisely the outcome a guardianship clause was meant to avoid.

Bottom line: a single nomination without a backup leaves a real gap if that first person can't step in when needed, which defeats much of the purpose of nominating a guardian in the first place.

What Happens If No Guardian Is Nominated

If both parents die and no guardian has been nominated, or the nominated guardian is unable or unwilling to act, the Family Court determines who cares for the children, generally guided by the children's best interests, but without the specific guidance a parent's own documented wishes would have provided. This can mean a longer, more uncertain process for the children involved, at an already difficult time, and can potentially result in a different outcome than the parents would have actually chosen themselves.

Bottom line: without a nomination, the decision about who raises your children shifts entirely to a court process, without your own wishes as a guide, at exactly the moment your children would most benefit from certainty.

Having the Conversation Before You Nominate

A guardianship nomination shouldn't be a surprise to the person named. Having a direct conversation with the proposed guardian beforehand, confirming they're genuinely willing and able to take on the role, is a genuinely important step many parents skip, either from discomfort raising the topic or from assuming agreement without actually asking. This conversation also gives the proposed guardian a chance to raise any concerns or practical considerations that might affect the decision, before it's formalised in a Will.

Bottom line: a nomination made without first having the conversation risks confusion or even refusal at the worst possible moment, having that conversation upfront is uncomfortable but considerably better than the alternative.

Worked Example: A Nomination That Was Never Discussed

James and Priya named James's brother, Daniel, as guardian for their two young children in a Will drafted shortly after their first child was born, but never actually discussed it with Daniel directly, assuming he'd naturally agree given their close relationship. Several years later, when reviewing their estate planning with WIAA as part of a broader financial review, they realised they'd never confirmed this with Daniel, and that his own circumstances, now with three children of his own and a demanding new role, might mean the nomination no longer genuinely reflected what would work in practice.

Following the review, James and Priya had the conversation directly with Daniel, who was honest that taking on two additional children given his own current family situation would be genuinely difficult, though he remained willing to be a backup guardian if needed. They updated their Will to nominate Priya's sister, who had explicitly confirmed her willingness and whose circumstances better suited taking on the role, as primary guardian, with Daniel remaining as backup.

Outcome: a nomination that had sat unreviewed and undiscussed for years was updated to reflect a genuinely willing and practically suitable guardian, avoiding what could have been a confusing or contested situation had the original, unconfirmed nomination ever needed to be acted on.

Bottom line: James and Priya's original nomination felt complete on paper, but it took an actual conversation and a review to discover it no longer reflected what would genuinely work, exactly the kind of gap a periodic review is designed to catch.

Common Mistakes

• Assuming a family member will automatically agree to be guardian without ever actually asking them. This risks confusion or refusal at the worst possible time.

• Not nominating a backup guardian. Without one, the nomination effectively fails if the first choice can't step in.

• Choosing the same person as both executor and guardian by default, without considering whether they're genuinely the right fit for each separate role. These are different responsibilities suited to potentially different people.

• Never reviewing a guardianship nomination after it's made. Circumstances change, for the parents and for the proposed guardian, and an outdated nomination may no longer reflect what would actually work.

• Assuming a guardianship nomination is automatically and absolutely binding on a court. It carries genuine weight but isn't an unconditional guarantee, having a clear, well-considered nomination still matters considerably.

A guardianship nomination is one of the simplest but most significant clauses in a Will, worth getting right and keeping current. A free 15-minute chat can help you review yours. Call 1800 942 843.

FAQ

Is a guardianship nomination in a Will legally binding on a court? Not absolutely, but it carries genuine weight and is generally given significant consideration in any Family Court decision about a child's care, making it far more valuable than having no nomination at all.

Do the guardian and executor need to be the same person? No, these are different roles, the executor administers the estate while the guardian raises the children, and many parents deliberately choose different people for each.

What happens if my nominated guardian can't take on the role when the time comes? This is exactly why a backup guardian nomination matters, without one, the situation effectively reverts to having no guardian nominated at all.

Should I ask the person I want to nominate before including them in my Will? Yes, strongly recommended, a nomination made without confirming the person's genuine willingness risks confusion or refusal at the worst possible time.

Can grandparents be nominated as guardians? Yes, generally, though their own age, health, and practical circumstances are worth considering alongside the emotional connection when assessing genuine suitability.

What happens if I don't nominate a guardian at all? If both parents die without a nomination, the Family Court determines who cares for the children, without the guidance a parent's own documented wishes would have provided.

How often should I review my guardianship nomination? Periodically, and specifically after any significant change, in your own circumstances, the proposed guardian's circumstances, or your relationship with them, an outdated nomination may no longer reflect what would actually work.

Can I nominate different guardians for different children? This is technically possible, though it's worth considering carefully, since separating siblings can carry its own emotional and practical implications worth discussing with a solicitor.

Does a guardianship nomination only apply if both parents die? Generally, yes, it's primarily relevant where both parents have died or are otherwise unable to care for the children, a surviving parent generally retains care in most circumstances.

Should my guardianship nomination be reviewed alongside my broader Will and estate plan? Yes, this is exactly the kind of clause that should be reviewed as part of a broader periodic estate planning check, rather than considered separately or only once at the time it's first written.

Ready to Make Sure Your Guardianship Nomination Actually Holds Up?

If your Will's guardianship nomination hasn't been reviewed, or discussed with the person named, in a while, it's worth checking it still reflects what would genuinely work. A free 15-minute chat can help.

• Call us: 1800 942 843

• Email: clientservices@whatifadvice.com.au 

• Book online: free 15-minute chat, no cost, no pressure

Still asking what if.

WIAA has helped Australian parents put guardianship nominations in place that are genuinely discussed, considered, and kept current, across Toowong, Grange, and Melbourne CBD. WIAA operates under AFSL 528250 as an Authorised Representative of Beryllium Advisers Pty Ltd.

General Advice Disclaimer: This article contains general information only and does not take into account your personal objectives, financial situation, or needs. It is not legal advice and should not be relied upon as such. Guardianship nominations and their legal weight in Family Court proceedings should be discussed with a qualified solicitor, and reviewed regularly as personal and family circumstances change.