What happens to children if both parents die without a will in Australia?
If you die without a Will, there is usually no document saying who should care for your children. A friend or family member may then have to apply to a court for orders, and the court decides what it considers is in the children’s best interests, which may not match what you would have chosen. Naming a testamentary guardian is not bulletproof, but it clearly records your wishes and carries real weight. You can name a guardian when you write your Will in minutes.
For related guidance, see does a de facto partner automatically inherit if someone dies without a will in Australia?.
Read the video transcript
If you don't have a Will, it is likely you don't have any documentation that specifies who is to look after your children. In that instance, it may be necessary for a friend or family member to apply to a court for appropriate orders to ensure that your children are adequately looked after. The court will then determine what it considers is in the best interests of your children, which may be different to what you consider are in their best interests. Whilst nominating a testamentary guardian under your Will is not bulletproof, it does ensure that your wishes are clearly expressed.
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