Estate planning involves getting your affairs in order, including deciding how your assets will be managed and distributed after you die. It also involves making plans for your healthcare if you become unable to make those decisions yourself.
Two documents that often get confused in estate planning are a last will and testament and a living will. Many people aren’t clear on the difference between the two.
This article will clarify the differences between a last will vs. a living will, outlining each document’s role in estate planning.
What is a last will and testament?
A last will and testament is a legal document that lays out exactly how you want your property and possessions divided up after you’re gone. It spells out who will inherit your house, car, bank accounts, and prized baseball card collection.
A will also allows you to name an executor. This person will be responsible for managing your estate, paying any debts or taxes that are due, and then distributing your assets to the people you’ve named in the will.
Perhaps most importantly, a will lets you name a guardian for your minor children, specifying who will be responsible for their care if you can’t be.
What makes a will valid?
For a will to be considered legal and binding, there are some requirements:
- Age and mental capacity. The person writing the will must be of legal age and of sound mind, meaning they understand what they’re doing.
- Written document. The will has to be in writing; an oral agreement isn’t going to cut it.
- Proper execution. The will needs to be signed by the person making it, and it typically needs to be witnessed. State laws vary on how many witnesses are required.
What is a living will?
A living will is a legal document that spells out your preferences for medical care in the event you become incapacitated and can’t communicate your wishes. It’s sometimes referred to as an advance healthcare directive.
The document typically specifies what kind of medical treatments you want to receive, such as life support, and what kind of pain management and end-of-life care you prefer.
A living will can address preferences for:
- Breathing tubes
- Feeding tubes
- Blood transfusions
- Dialysis
- Pain medication
- Organ donation
- CPR
A living will is particularly important if you’re seriously ill or about to undergo surgery.
Living will vs. healthcare power of attorney
With a living will, you’re specifying your wishes directly. A healthcare power of attorney, on the other hand, designates someone to make healthcare decisions on your behalf. This person is sometimes called a proxy or agent.
These two documents can work together to provide comprehensive guidance regarding your healthcare.
Last Will vs. Living Will: Key Differences
While both a last will and a living will are important estate planning tools, they serve very different purposes. Here’s a summary of their key differences:
| Feature | Last Will | Living Will |
|---|---|---|
| Purpose | Distributes your property after you die. | Guides healthcare decisions if you become unable to make them yourself. |
| Timing | Goes into effect after your death. | Goes into effect while you are still alive, but incapacitated. |
| Content | Deals with your property, possessions, and who will care for your children. | Deals with your medical treatments and wishes for end-of-life care. |
| Revocability | Can be changed or revoked before death. | Can be changed or revoked as long as you are still able to make decisions. |
| Consequences of Not Having One | State laws will dictate how your assets are distributed. | Doctors and family will make medical decisions without knowing your preferences. |
Why you need both documents
A comprehensive estate plan includes both a last will and a living will. They offer different types of guidance and support to your loved ones during difficult times.
Creating both documents while you are healthy ensures you have the time and space to think through your preferences and discuss them with family. It also ensures that your documents will be written clearly and precisely.
Carefully drafted wills also prevent legal challenges and ensure your estate moves through probate as smoothly as possible. Without a will, your estate may become subject to legal battles and disputes, causing additional stress for your family.
Frequently Asked Questions
What is the difference between a last will and a living will?
A last will and testament dictates what happens to your assets after you die. It names beneficiaries and an executor to manage your estate. A living will, on the other hand, expresses your wishes regarding medical treatment while you’re still alive, but unable to make decisions for yourself. They address entirely different scenarios.
What is the meaning of “last will”?
The term “last will” signifies that this document represents your final wishes regarding the distribution of your property and care of any minor children after your death. It’s the legal instrument that ensures your estate is handled according to your preferences, assuming it’s valid and properly executed.
What is one of the main disadvantages of a living will?
One significant disadvantage of a living will is that it can be very difficult to anticipate every possible medical scenario. Your wishes might not be clearly defined for a specific situation, leading to potential disagreements or uncertainties about the appropriate course of action. It’s crucial to discuss your values and preferences with your doctor and loved ones to minimize ambiguity.
In Conclusion
A last will and a living will are two important documents everyone should have. They work together to make sure your wishes are honored, both when it comes to your money and property and when it comes to your healthcare.
If you haven’t already, now is the time to create these documents. To get personalized advice and make sure your will is legally sound, talk with an experienced estate planning attorney.
Planning ahead gives you and your loved ones peace of mind. You’ll know your wishes will be followed.