Few legal questions carry more emotional weight than what happens to a child if both parents pass away. While it’s a difficult topic, preparing the right legal documents ensures your child’s care and welfare are protected under Australian law.
Without formal guardianship documents, decisions about who will raise a child fall entirely to the Court — often during an emotionally charged period.
This guide explains the essential legal documents for child custody if parents die, how they operate under the Family Law Act 1975 (Cth), and what steps families can take to plan responsibly and avoid future disputes.
Who Gets Custody of a Child if Both Parents Die?
When both parents die, custody is determined by the Family Court of Australia, not automatically transferred to relatives or godparents.
Under the Family Law Act 1975 (Cth), the Court’s primary duty is to ensure decisions reflect the best interests of the child, which override all other considerations — including family expectations or informal promises.
In practice, the Court first examines whether the deceased parents left valid legal documents nominating a guardian, usually through a Last Will and Testament. If a testamentary guardian has been named, the Court generally upholds that choice unless evidence shows the person is unfit or unwilling to care for the child.
If no guardian has been nominated, the Court evaluates potential carers based on:
- Their emotional connection with the child
- Their capacity to provide long-term stability and safety
- The child’s own views and preferences, depending on age and maturity
- Any existing family relationships or caregiving arrangements
Typically, the Court will prioritise close family members — such as grandparents, aunts, uncles, or adult siblings — provided they can meet the child’s needs.
If no suitable relative is available, the Court may appoint a state guardian or independent carer under the supervision of the relevant child protection authority (for example, the Department of Communities and Justice (NSW)).
In summary, the Family Court decides who gets custody after both parents die, guided by the child’s welfare, not inheritance or family hierarchy. Preparing formal guardianship documents in advance is the only way to ensure parents’ wishes are legally recognised.
Essential Legal Documents for Child Custody if Parents Die
Several legal documents can safeguard a child’s future care and decision-making arrangements in the event of parental death.
1. Last Will and Testament (Guardianship Clause)
A Last Will and Testament is the cornerstone of custody planning. It allows parents to nominate a testamentary guardian — the individual who will assume parental responsibility if both parents die.
The Court usually respects this nomination unless there are compelling reasons it would not serve the child’s welfare (for example, unfitness, unwillingness, or incapacity). Without a valid Will, the Court must appoint a guardian independently, which may not align with the parents’ wishes.
2. Enduring Power of Attorney (EPOA)
An Enduring Power of Attorney enables a trusted person to make financial and welfare decisions when a parent becomes incapacitated.
Although this authority ends upon death, it provides critical legal continuity if a parent cannot act temporarily before guardianship formally transfers. It complements the Will and prevents decision-making gaps during emergencies.
3. Statutory Declaration of Guardianship Intent
A statutory declaration records a parent’s preference for a future guardian. While not legally binding, it carries persuasive weight in Court and can strongly influence who is appointed.
It should clearly identify the proposed guardian, describe their relationship with the child, and state why they are best suited for long-term care.
4. Parenting Plan or Consent Order
For separated or divorced parents, a parenting plan or consent order can specify what should occur if one or both parents die.
These documents can include guardianship clauses and provide a legally recognised framework for succession of parental responsibility, reducing uncertainty or family conflict.
5. Temporary Guardianship Authority
A temporary guardianship agreement provides short-term authority for another adult to care for the child during specific circumstances — for example, parental illness, travel, or temporary incapacity.
It ensures the child’s needs are met immediately until formal guardianship can be confirmed.
What Happens If Parents Die Without a Will or Guardian?
If both parents die without a valid Will or named guardian, the Family Court of Australia (or the relevant state or territory court) decides who will care for the child. There is no automatic transfer of custody to relatives — even close family members like grandparents or godparents must apply to the Court for formal guardianship.
Under the Family Law Act 1975 (Cth), the Court’s overriding duty is to protect the best interests of the child. This means the judge considers a range of factors before appointing a guardian, including:
- The child’s age, emotional wellbeing, and specific needs
- Each applicant’s ability to provide a stable and safe environment
- The strength of the existing relationship between the child and potential carers
- The child’s own wishes (if mature enough to express them)
- Any history of neglect, family conflict, or unsuitable living conditions
If multiple relatives seek custody, the Court reviews all applications and may order family assessments or welfare reports before making a final decision.
In some cases — such as when no suitable family member is available — guardianship may temporarily pass to a state authority, like the Department of Communities and Justice (NSW), until a permanent arrangement is approved.
Ultimately, when parents die without a Will or guardianship plan, the decision rests entirely with the Court, not with the family. This is why finding a good family lawyer early to draft a legally compliant Will is essential — ensuring the child’s care reflects the parents’ values and intentions.
Guardianship vs Custody After Parents’ Death
In family law, guardianship and custody have distinct legal meanings:
- Guardianship covers long-term decisions about the child’s education, health, and moral development.
- Custody (or “care”) concerns the child’s daily living arrangements and physical care.
Usually, the same person holds both roles, but the Court may separate them if doing so better serves the child’s best interests — for example, dividing decision-making between family members with different strengths.
How to Legally Appoint a Guardian?
To legally appoint a guardian for your child in Australia, you must include a guardianship clause in your Will. This clause allows parents to nominate a testamentary guardian — a person who will assume parental responsibility if both parents pass away. The process is recognised under the Family Law Act 1975 (Cth) and state succession laws such as the Succession Act 2006 (NSW).
Here’s how to do it properly:
- Prepare or update your Will with assistance from an experienced family lawyer. The Will must clearly name the chosen guardian and specify their relationship to the child.
- Obtain the guardian’s consent in writing. The nominated person must agree to the role and understand the long-term responsibilities involved — including decision-making about education, health, and daily care.
- Include detailed instructions if necessary. Parents can outline values, lifestyle preferences, or educational goals to guide the guardian’s decisions. These aren’t legally binding but help maintain continuity of care.
- Ensure the Will is valid and properly executed. It must meet formal signing and witnessing requirements to be enforceable in court.
- Review the document regularly. Life changes — such as remarriage, relocation, or changes in family dynamics — may require a new Will or updated guardianship nomination.
If both parents die, the Family Court generally upholds the nominated guardian unless evidence shows that person is unsuitable or unwilling to act.
Failing to name a guardian leaves the decision to the Court, which can delay care arrangements and increase the risk of family disputes.
In short, the only legally recognised way to appoint a guardian is through a valid Will — supported by professional legal advice to ensure it meets all statutory and procedural requirements.
Costs and Legal Considerations
The cost of preparing a Will with guardianship provisions typically ranges from $400 to $1,500, depending on complexity.
While cheaper online templates exist, they often lack compliance with state-specific regulations and can be challenged in Court.
Working with a family lawyer ensures:
- Proper execution under the Succession Act 2006 (NSW) or equivalent state legislation
- Integration with estate and trust planning
- Prevention of future disputes between relatives
Professional legal advice provides peace of mind that the documentation will withstand judicial scrutiny.
Steps for Grandparents or Relatives Seeking Guardianship
If parents die without naming a guardian, grandparents or relatives can apply for guardianship under the Family Law Act 1975 (Cth).
The Court will consider:
- The applicant’s capacity to provide a stable and safe home
- The emotional bond between the child and applicant
- Any competing claims or family disputes
These cases often involve detailed affidavits, welfare reports, and family-consultation processes — making legal representation highly advisable.
Temporary and Emergency Guardianship Orders
In urgent cases — such as unexpected deaths — the Court can grant interim guardianship or custody orders to prevent disruption to the child’s care.
State agencies like the Department of Communities and Justice (NSW) may step in temporarily until permanent arrangements are approved.
FAQs
Before addressing specific questions, it’s important to note that guardianship laws differ slightly across states, but all decisions are guided by the principle of the child’s best interests under the Family Law Act 1975 (Cth).
What legal paperwork is needed for child guardianship after parents’ death?
A Last Will and Testament with a guardianship clause is the primary document. Supporting materials — such as a statutory declaration or parenting plan — provide further clarity.
Who decides custody if parents die without naming a guardian?
The Family Court decides custody, generally preferring close relatives. However, if no suitable family member is available, the Court can appoint an independent guardian.
Can guardianship and custody be separated?
Yes. Guardianship involves long-term decisions, while custody focuses on daily care. The Court can assign these roles to different individuals if appropriate.
How can grandparents obtain guardianship after a parent’s death?
Grandparents can apply for a Parenting Order or guardianship through the Family Court, providing evidence of suitability, capacity, and emotional connection.
Are there temporary guardianship options available?
Yes. Temporary guardianship documents or emergency custody orders can be used until permanent guardianship arrangements are finalised.
Conclusion
Establishing legal documents for child custody if parents die is a critical step in family and estate planning.
Without them, the decision over who raises the child passes to the Court, which may not reflect the parents’ wishes. Working with an experienced family lawyer ensures all documents — from Wills to guardianship clauses — are properly prepared and legally sound
For guidance, documentation, or assistance with guardianship planning, contact LegalFinda, Australia’s trusted platform connecting individuals with expert family law practitioners dedicated to protecting children’s futures.
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