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Who will look after my children if I die?

 

We don't give advice about this area of law

The information below may help you to resolve your matter or find out who else can help. 

You can nominate someone in your will as a ‘testamentary guardian’ of your children if you die. This doesn’t necessarily mean that your child will live with that person if you die.

If you’d like to appoint someone as a testamentary guardian in your will, get legal advice.

If there’s a dispute about who the children live with after a parent or guardian dies, get legal advice.

Appointing someone to look after your children when you die

You can nominate someone in your will as a ‘testamentary guardian’ of your children. A testamentary guardian will be able to make decisions about the long term care of the child such as education or religion. 

Appointing a testamentary guardian doesn’t necessarily mean that your child will live with that person. They will only have the daily care of your children if the other parent is dead and there is no other family court or federal circuit court orders in place saying who your child is to live with.

What if there is a dispute?

If there’s a dispute after you die between relatives or the other parent, the testamentary guardian, the family court or federal circuit court can resolve disputes about where the children should live.

What if the other parent is still alive?

If the other parent is still alive, the testamentary guardian will share their obligations with the surviving parent or any other existing guardian.

An existing parent or guardian can apply to the Supreme Court to cancel the appointment of a testamentary guardian. You should get legal advice.

Do I need legal advice?

You may need legal advice if:

  • you’ve got questions about nominating a testamentary guardian to care for your child if you die
  • there’s a dispute between relatives, or the other parent and the testamentary guardian about where a child should live
  • you’re applying to the Supreme Court to cancel the appointment of a testamentary guardian.

Get legal advice

We may give legal advice about wills including appointing or applying to cancel a testamentary guardian.

We may give legal advice if there’s a dispute about where children should live. 

The following organisations may be able to give legal advice.

Community legal centres give legal advice on a range of topics. Contact them to find out if they can help with your matter.

Queensland Law Society can refer you to a specialist private solicitor for advice or representation.

Who else can help?

These organisations may be able to help. They don’t provide legal advice.

Family Court hears disputes and provides information about family law matters.

Federal Circuit Court hears disputes and provides information about family law matters.

Supreme Court hears applications to cancel the appointment of a testamentary guardian.

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