Living Will vs Last Will and Testament
A "living will" and a "last will and testament" sound similar — and both are used to express the desires of the person who created them — but they are different legal documents with distinct aims
In this article, we explain how each can play an important role in your estate plan.
How Do I Remember Which Is Which?
It is easy to remember the difference by thinking of the words “living" and “last." A living will takes effect when you are still living and gives health care providers instructions for treating you while you are alive.
A last will and testament describes your last wishes for your property and your minor children. It is not effective until you die, and you can revoke or change it as long as you are living. The final last will and testament you write will be one of your last legal documents to become effective.
What Is a Living Will?
A living will is a legal document that tells medical professionals what medical care you want during an end-of-life situation. It also can include directions for organ donations. It is your chance to express what types of lifesaving measures you do or do not want.
Health care professionals will only consult the living will if you are unable to make or communicate your own decision. You also may revoke or revise your living will at any time.
A living will also is known as an "advance directive." Almost every state has laws that define what a living will is and how to create a legally binding living will. A few states do not have specific laws regarding living wills, but health care providers and courts in these states may still choose to honor living wills.
A related document to consider using is a durable power of attorney for health care. With this document, you can appoint a friend or relative as your attorney-in-fact to make health care decisions for you if you become unable to make them for yourself. Despite the name “attorney-in-fact," this person does not need to be a lawyer.
Both the living will and durable power of attorney for health care have different names in different states. In some states, they must be separate documents, while other states only have one document that includes both the living will and durable power of attorney for health care.
Ready to create a living will? Get a living will form tailored to you.
What Is a Last Will and Testament?
A last will and testament is a legal document containing your instructions for how to distribute your property after your death. You will also name a person to manage the distribution. This person is often called the executor.
Through a judicial process called probate, a court will review the will to ensure it is valid; hear any challenges to the will, and make certain the executor administers the estate in accordance with the will. Unless your instructions violate the law or cannot be fulfilled, a probate court will honor the terms of your last will and testament.
If you have minor children, you also can use it to name who you wish to be their legal guardian. Usually, courts will honor your choice. However, courts will not appoint your designated guardian if it is not in the best interest of your children. For example, if your preferred guardian ends up incapacitated or incarcerated, a judge will choose someone else, likely one of your family members or close friends.
Dying without a valid will is called “intestacy." If you did not create a last will and testament, your state's intestacy laws will determine how your property is distributed. These detailed laws give preference to children of the deceased, followed by close relatives.
Ready to create your will? Get a last will and testament form tailored to you.
Who Should Keep Your Living Will?
You should give a copy of your living will to your primary doctor and should provide copies to other physicians who perform medical procedures on you. If you have a durable power of attorney for health care, you also should give a copy of your living will to the person you appointed as your attorney-in-fact.
You could also give copies to close family members who you trust. If you think a family member will not honor your end-of-life wishes, you might not want to give them a copy of your living will.
Who Should Keep Your Last Will and Testament?
Unlike living wills, only the original last will and testament that is properly signed and witnessed is legally binding in most states. Copies of a last will and testament usually are not enforceable. State law may allow for two originals and may allow courts to accept a trustworthy copy if the original cannot be located.
It is best to keep the original last will and testament in a safe place. Some law firms will keep the original will on file for you. If your lawyer does not keep originals for clients, local courts often will hold wills on file.
It is not a good idea to use a safe deposit box to store your will. Bank rules for accessing a safe deposit box can make it difficult to obtain the will when the owner is deceased.
Do I Need an Attorney To Create a Living Will or Last Will and Testament?
You may not need an attorney for a living will or last will and testament. You can find living will forms that make it easy to express your wishes about your health care.
A person with few assets and no children might be fine creating a last will and testament on their own, but it is a complicated estate planning document and must be properly signed with witnesses to be binding.
Speaking with an experienced estate planning attorney who is licensed in your state about these documents can give you the peace of mind that your wishes will be fulfilled. An attorney can work with you to create these documents as part of a comprehensive estate plan that could include other legal documents, such as trusts and powers of attorney.
Can I Solve This on My Own or Do I Need an Attorney?
- DIY is possible in some simple cases
- Cases with complex health care decisions or families are rarely cut and dry
- Attorneys offer tailored advice and answer your legal questions
- Many attorneys offer free consultations