What’s the Difference Between a Living Will and a Will?
Understanding two important estate planning documentsBy Canaan Suitt, J.D. | Last updated on January 29, 2023
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Despite sounding the same, a will and a living will are “very different documents” in an estate plan, says Maryland estate planning attorney Jeremy D. Rachlin.
“A ‘will’ is short for ‘last will and testament’ and is a document that governs the post-death distribution of assets,” says Rachlin. “A living will, on the other hand, is a document that commonly deals with end-of-life medical treatment… such as medical intervention to expand my life under certain conditions.”
In other words, a will focuses on your afterlife wishes, while a living will focuses on your end-of-life plans.
A will answers questions such as:
- What property is included in your estate?
- How will your property be distributed?
- Who will be the recipients of your estate?
- Who will manage the distribution of your estate?
A living will addresses issues such as:
- What sort of medical care you will receive if you become incapable of making healthcare decisions
- What sort of medical care you will not receive
- What you want to happen if you are placed on life support
- Who will be authorized to make healthcare decisions on your behalf if you cannot
A will and a living are both critical for ensuring that your wishes are fulfilled.
Living Will vs. Last Will
A “living will focuses on end-of-life medical intervention, whereas a will focuses on the post-death distribution of assets,” says Rachlin.
A living will is a type of advance directive that tells healthcare professionals and family members what sort of medical care you will receive if you become incapable of making those decisions.
A living will addresses:
- What sort of end-of-life care you want (and don’t want) to receive, including types of medication, medical treatment, and surgery
- Whether you’ll participate in organ donation
- Your wishes regarding life support and being on a feeding tube
Other types of advance directives include:
- Do not resuscitate (DNR) order, which directs medical professionals not to take life-saving actions in the event your heart stops
- A durable power of attorney (also called a health care proxy or health care agent, depending on your state) appoints a personal representative authorized to make medical decisions on your behalf in case you become incapacitated
A power of attorney (POA) is “a very important document—I call it incapacity planning,” says Rachlin.
“There are really two types of powers of attorney: a healthcare POA and a financial POA. These documents vest an individual with the requisite legal authority to help you with your healthcare decision-making and financial affairs if you become incapacitated.”
How long does the authority of a POA last?
“These documents cease to have any validity the moment you take your last breath,” says Rachlin.
The importance of a power of attorney has “really been driven home since March 2020 with the outbreak of the Covid-19 pandemic,” says Rachlin. “The failure to have a healthcare or financial POA could cause the family to be in a situation where they have to go to court to get a guardianship order.”
The requirements for making valid advance directives (including a living will, power of attorney, and DNR) vary by state. It’s very important to understand your state’s laws before drafting an advance directive.
The best way to ensure your advance directives are legally sound is to speak with an estate planning lawyer in your area.
Living Will vs. Living Trust
It’s worth distinguishing a living will from a living trust since their names are also similar.
Whereas a living will details healthcare and end-of-life decisions, a living trust is another legal tool for distributing assets to beneficiaries.
Generally speaking, when you create a living trust, you transfer assets to the trust to be distributed to your beneficiaries and name a successor trustee.
In a revocable living trust, you retain control over the trust until you die. When you die, control of the trust passes to your successor trustee. The successor trustee then distributes the assets in the trust to your named beneficiaries.
One of the significant benefits of a trust over a last will and testament is that assets in a trust don’t pass through probate court.
If a living trust sounds like a good option for your estate, you should speak with an estate planning lawyer about your options.
Last Will and Testament
A last will and testament (or “will”) is a legal document laying out your wishes for what happens to your estate when you die.
The person who creates the will is called a testator. State laws vary on what is required for a valid last will and testament.
In general, the testator must be at least 18 years old and of sound mind when they create the will. Additionally, they must sign and date the will in the presence of witnesses.
States generally require two or three witnesses. The witnesses must not be individuals who stand to benefit from the will. In other words, they must be third parties.
The will names beneficiaries of the estate, explains who should get what property, and also names an executor.
The executor is the testator’s personal representative who will guide the estate through the probate process and ensure that the testator’s wishes are followed.
There are many advantages to having a will. Ultimately, it gives the testator peace of mind that their last wishes are known and will be followed.
Having a will also avoids intestacy, when the testator’s property is distributed according to state laws. While intestacy laws are beneficial as a backup, they often do not track an individual’s preferences for distributing property.
Questions for an Estate Planning Attorney
Both a will and a living will are essential documents in your estate plan. There are enormous benefits to planning ahead and little costs.
For example, most estate planning lawyers give free consultations to potential clients. So, it won’t cost you anything to meet with a lawyer and get legal advice about your estate. From there, you can decide if you want to hire the lawyer for their legal services.
To get the most out of a consultation, ask informed questions such as:
- What are your attorney’s fees and billing options?
- How do I create a valid will?
- Do I need a living will or other advance directives?
- Should I create a living trust?
- If I want to make changes to my estate plan, how do I do that?
Once you have met with a lawyer and gotten your questions answered, you can begin an attorney-client relationship.
Look for a lawyer who specializes in wills in the Super Lawyers directory for legal assistance.
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