The birth of a child is an exciting time. A new chapter of your life begins when a baby is born. It’s also a time that you may ponder the fragility of life and the impact that unexpected circumstances may have on your loved ones.The birth of a child is an exciting time. A new chapter of your life begins when a baby is born. It’s also a time that you may ponder the fragility of life and the impact that unexpected circumstances may have on your loved ones.
Why you should appoint a guardian for your child
You can’t control what happens in your day. But you can create a contingency plan in case something were to happen to you and/or your partner. While this may not be a pleasant thought, it is worth taking some active steps to ensure that your wishes for your child are formally documented.
What happens to a child if both parents die without a will
If there are no specific written instructions in a will and in the event of the death of both parents, any person with sufficient interest (i.e. grandparents, aunties or uncles) can apply for guardianship of your children. In such situations, the Family Court decides who should become the legal guardian based on the child’s best interests. This is not ideal as the person chosen by the Family Court may not necessarily be the person that you would choose to care for your child.
What happens to a child if one parent dies without a will
In the event of the death of one parent, the surviving parent will usually be the child’s legal guardian, unless this is not in the best interest of the child. Such circumstances may include:
- A restraining order against the surviving parent
- Domestic violence perpetrated by the surviving parent
- A history of drug or alcohol abuse by the surviving parent.
🛈 If you’re in this situation, you should seek the advice of a professional will writer to safeguard your children.
If you haven’t yet written your Will or organised your estate planning, contact State Trustees for expert advice and assistance.
How to appoint a guardian for a minor child in a will?
You can formally appoint a guardian for your minor child in your will.
It is very important to discuss your intentions, obtain consent and discuss your expectations with the prospective guardian. During this discussion, it’s also a good idea to share the set of guidelines that you have prepared. Read more about creating a set of guidelines for the prospective guardian here.
How to choose a guardian for your child?
-
Similarities between your lifestyle, values and religious beliefs – do these align with yoursSimilarities between your lifestyle, values and religious beliefs – do these align with yours
-
Who your child might already have a bond with
-
Whether the individual already has or is planning to have children
-
The transition, in terms of location and lifestyle, your child will need to make
-
Practically, who can take on the role – physically, financially and emotionally.
Guardianship of a child in Victoria – further considerations
Other factors to consider, beyond the selection and appointment of a guardian, include the details of how this process may unfold. Considerations include:
- Whether your child will move in with the guardian or continue living in the family home
- Where the nominated guardians are grandparents living in retirement villages, the prospective living arrangements for your child.
A nominated guardian should not suffer any financial burden or loss whilst acting in the role. Practice tends to be that the guardian will have access to the child’s share of the estate, at the discretion of the trustee.
Therefore, it makes sense to have two different individuals acting as executor/trustee of your estate and guardian of your child respectively. The executor/trustee of your estate will be in charge of distributing the money to your child’s guardian in accordance with the terms of your will. The guardian of your child will be responsible for making lifestyle decisions for your child. This is designed to prevent conflicts of interest and any potential misconduct.
You could appoint the same person to fulfil the role of guardian of your child and executor/trustee of your will if you have complete trust in them. However, the nominated person should preferably possess reasonable financial acumen.
Learn about how State Trustees can become an executor of a will.
Where can you safely store your will?
Once you have completed your will, you should consider the individuals who should have access to it and/or be made aware of its existence. This is a very personal decision.
You can share a copy of your will with anyone you choose: your appointed guardian, family members, friends, religious leader, accountant or even your child.
If you’re concerned about leaving your original will in your family home, the Victorian Will and Powers of Attorney Registry is a great alternative option. It is managed by State Trustees. Being a government-owned business, our facility provides secure and reliable storage at no cost to Victorians. Learn more about the Will and Powers of Attorney Registry and how you can lodge your will for safekeeping, no matter where or how it was written.
Final decision of the court
It is important to recognise that if the worst-case scenario were to unfold, the Family Court would ultimately determine who becomes the guardian. And, depending on the age of the minor children, the Court may take into consideration of their wishes (especially after 12).
Ultimately, the decision is made for the best interest of the child/children. However, a will is a highly respected document. Providing your will can be found and is valid, the wishes you outline, in most cases, would be held in high regard in the Court.
Contact State Trustees about appointing a guardian in a Will
A will is the only legally valid document accepted by law as a person’s final wishes. Making a will, even if you don’t have children or a partner to look after, is a great way of making sure everyone knows exactly what you want after you die.
You can use our Online Will to produce a simple will document in as little as 30 minutes. Speak to us by video or in person with a Will Appointment. To learn more, reach out to us on 1300 138 672 or fill out a contact form today!
FAQs
Select a topic
Choosing a Guardian
If you don’t appoint a legal guardian for your child and there is no other living parent capable of caring for them, the decision will rest with the Family Court.
The legal guardian of a child in Victoria can be anyone over the age of 18 who is capable of making and implementing decisions within the child’s best interests.
Appointing a legal guardian in a will does not require a lawyer. However, State Trustees strongly advises you to involve a professional so that your will is as correct and robust as possible. Our legal experts can assist you in this matter.
Appointing a guardian for a child can be changed at a later date. However, you will need to go through the Victorian Civil and Administrative Tribunal (VCAT) for this process. State Trustees is able to manage and guide you through this process.
Nobody automatically becomes the legal guardian of a minor, not even the grandparents. This is an unfortunate assumption that many Victorians can make. State Trustees strongly urges you to write a will that includes details of your child’s guardians (after having discussed the matter with them at length and received their consent).
Whilst appointing a guardian for a child in a will costs nothing, there are expenses in writing your will in the first place. Ideally, you should also consider the expenses your child’s guardian might incur, and make allowances for these.
Useful resources
Share this article
