Planning for the unexpected is never easy. But when you have children, making sure there is a clear plan in place can reduce uncertainty and help protect their stability if the worst happens.
If both parents die without clearly recording who they would want to care for their children, there may be no clear direction from the parents about who should take responsibility for the children. In those circumstances, family members may need to make arrangements for the children’s care, and if there is disagreement or concern about the proposed arrangements, the matter may ultimately need to be considered by a court.
If both parents die without a Will or without appointing a testamentary guardian
If both parents pass away and there is no valid Will, or their Wills do not contain an appropriate appointment of a testamentary guardian, there may be no clear written direction from the parents about who they would want to care for their children.
In practice, family members may step in informally at first. However, if there is disagreement between relatives, or concerns about a person’s suitability, formal steps may be needed.
Depending on the circumstances, relatives or other people concerned with the child’s care, welfare or development may seek court orders about matters including:
- who the child should live with
- who should have parental responsibility for the child
- arrangements for the child’s care and upbringing
- other matters necessary to protect the child’s best interests.
Where there are concerns about a child’s safety or wellbeing, including family violence, neglect or substance misuse, child protection authorities may also become involved.
How decisions are made
Where a court is required to determine arrangements for a child, the child’s best interests are the paramount consideration.
While the aim is to achieve the best possible outcome for the child, court proceedings can be time-consuming, costly and emotionally difficult for families, particularly where multiple relatives have different views about what is best for the child.
If one parent dies without a Will
If one parent dies, the surviving parent will ordinarily continue to care for the child and exercise parental responsibility.
However, there are situations where concerns may arise, and other family members may seek legal advice about whether court orders are necessary to protect the child’s welfare. Examples can include:
- family violence concerns (including an intervention order)
- serious drug or alcohol misuse
- other risks to the child’s safety or wellbeing
In these situations, the law may allow the court to make parenting orders that differ from the usual arrangement, where that is necessary in the child’s best interests.
How to appoint a testamentary guardian in your Will
One of the most effective steps you can take is to prepare a Will that clearly records:
- who you would want to care for your child if both parents die
- who you would want as an alternative caregiver if your first choice cannot act
- any practical guidance about your child’s upbringing
When choosing a preferred guardian, it helps to:
- choose someone whose values and parenting approach broadly align with yours
- have an open discussion with them about what the role could involve
- confirm they are willing and able to take on the responsibility
- review your nomination over time, especially after major life changes (separation, remarriage, relocation, or changes in health)
Written guidance for your child’s future
In addition to your Will, it can be useful to prepare a separate written statement of wishes for the person who may care for your child.
This could include information about matters such as:
- schooling and extracurricular activities
- cultural and religious considerations
- health and medical preferences
- contact with extended family
- routines and general approach to care
These types of notes may not be legally binding, but they can provide valuable clarity and reduce conflict.
An important note about Wills and parenting decisions
A testamentary guardian appointment in a Will is a strong and practical way to record your intention. However, if a dispute arises, or if there are concerns about a proposed caregiver, a court can still make different orders if it considers that necessary in the child’s best interests.
Why this matters
When there are no clear instructions, families can face uncertainty at the worst possible time. By appointing an appropriate testamentary guardian in your Will and recording your wishes, you reduce the risk of disputes, provide guidance to those who may step in, and help create stability for your child.
Need advice?
Ferraro & Singh Lawyers Pty Ltd can assist with Wills and estate planning, including tailored planning for families with young children, blended families, or more complex circumstances.
General information only. This article is not legal advice and is intended as a general guide for Victoria. Different rules may apply depending on your circumstances.
