Who Looks After My Children If I Die? Understanding Testamentary Guardians

It's a question no parent likes thinking about:

What happens to my children if I die while they're still young?

For parents of children under 18, choosing a testamentary guardian can be one of the most important decisions made when preparing a Will.

What is a testamentary guardian?

In NSW, a parent can appoint a person in their Will to act as a guardian for their child after the parent's death.

This person is commonly referred to as a testamentary guardian.

The role can involve making important decisions concerning the child's care and welfare.

But appointing someone in your Will does not mean that person automatically has an absolute right to the child regardless of the circumstances.

The child's best interests remain paramount, and existing parental responsibility arrangements and any Court involvement may also be relevant.

Who should I choose?

This is where many parents get stuck.

You might immediately think of your parents, brother, sister or closest friend.

But don't choose someone simply because they are the person closest to you.

Think practically.

Ask yourself:

• Does this person have a good relationship with my children?

• Do we have similar values and approaches to parenting?

• Are they physically and emotionally capable of taking on the responsibility?

• Where do they live?

• Would my children need to change schools or move away from their support network?

• Do they already have children of their own?

• Would they genuinely be willing to take on the role?

And perhaps most importantly:

Should the guardian also control my children's money?

Not necessarily.

The person you trust to raise your children doesn't automatically have to be the person you want managing their inheritance.

Your Will can separately deal with who manages estate assets and how money is made available for your children's education, health, maintenance and other needs.

Have I actually spoken to them about it?

Don't let the first time someone discovers you wanted them to raise your children be when your Will is read.

Should I appoint a couple?

You can discuss with your solicitor whether appointing one person or more than one person is appropriate.

But think about what happens if circumstances change.

For example, if you appoint your sister and her spouse together, what would you want to happen if they later separated?

Estate planning isn't just about what works today.

Good drafting considers what might happen tomorrow.

What if I change my mind?

You can update your Will.

In fact, you should review your choice of guardian as your children grow and circumstances change.

The perfect choice when your child is two years old may not be the right choice ten years later.

Don't leave the decision unspoken

This is one reason testamentary trusts and guardianship provisions are often considered together when preparing Wills for young families.

You cannot predict the future.

But you can make your wishes clear.

At Neilson + Co Legal, we help parents put an estate plan in place that deals not only with who receives their assets, but also with who they trust to care for the people who matter most.

If you have children under 18 and haven't reviewed your Will recently, now is a good time to do it.