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.
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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 final 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, life support, vegetative state decisions, or other medical treatments. 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 medical decisions. You also may revoke or revise your living will at any time.
A living will can also be called a “health care directive,” “advance directive,” “declaration regarding life-prolonging treatment,” or some other similar term. 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. Check to see living will laws in your state.
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 health care agent to make health care decisions for you if you become unable to make them for yourself. A health care power of attorney may also be called a “medical power of attorney,” and a health care agent is also sometimes known as an “attorney-in-fact.” Despite the name “attorney-in-fact,” this person does not need to be a lawyer to serve as your personal representative.
Both the living will and health care power of attorney have different names in different states, and sometimes they are separate documents. It’s common to create a two-part health care directive that includes both a:
- Living will with instructions for your health care
- Medical power of attorney designating someone to carry out your health care wishes and make decisions on your behalf if you can’t make them yourself
Get a living will form tailored to you, and your state’s requirements.
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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, often called the executor. You will also designate beneficiaries of your estate in this document.
During the probate process, 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 will be 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?
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.
Unlike living wills, only the original last will and testament is legally binding in most states, and it must be properly signed by you (the testator) and your witnesses. 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 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?
In some cases, not necessarily. You can find healthcare directive and living will templates with a DIY solution that make it easy to express your wishes about your health care.