Two very important legal documents that many folks should include in their end-of-life plan are a living will—also called an “Advanced Health Care Directive”—and a “Last Will and Testament,” otherwise known as a will.
Jump ahead to these sections:
- What’s a Living Will?
- What’s a Last Will and Testament?
- Living Wills vs. Wills: Five Differences to Know
These two documents serve very different purposes at very different times when dealing with your estate. Yet they complement each other to provide comprehensive legal means of ensuring that your end-of-life wishes are carried out both before and after your death.
These documents are different in several ways, and it is important that you have both documents in your estate plan. Despite the suggested opposite imagery of a “living will” versus a “last will and testament,” there are similarities as well.
One thing they both have in common is that they both should be part of your estate plan now. When you understand the differences between them, you will understand why each plays a critical role in your current end-of-life plan.
What’s a Living Will?
A living will, also known as an advance directive, is a legal document in which you communicate your wishes for end-of-life medical decisions.
It expresses your preferences if you're ever incapacitated or unable to make decisions because you're unconscious. With a living will, your family members will know what medical procedures you may or may not want doctors to use to sustain your life. This could include procedures like:
- Use of an artificial ventilator
- Tube feeding for food and hydration
- Cardiopulmonary resuscitation (CPR)
- Antibiotic treatments
- Pain medication
Need a living will? Locate your state's advance directive forms.
What’s a Last Will and Testament?
A last will and testament expresses your wishes for the distribution of your property upon your death. You must create your will while you are alive, competent, and mentally capable, but your will doesn't operate until after your death.
With a will, you can express to your family your wishes for the final administration of your estate. This can include things like the following:
- How you want your property distributed
- How you want your debts and taxes to be paid
- Preferences for your burial and funeral
- Who you want to serve as guardian of your children
- Who you want (or don’t want) to share in your estate
A will allows you to control the distribution of your property after your death and avoid having the state give your property to your heirs or even take your property if you have no heirs.
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Living Wills vs. Wills: Five Differences to Know
A living will and a will share many things in common:
- They both must be created during life when you are competent and mentally capable
- They both express your preferences for end-of-life choices
- They both can be revoked or amended during life
- They both are legally binding
However, these legal documents have significant differences in the way they operate and the purposes they serve. Here are five ways in which living wills and wills are different:
Living wills and wills operate at different times
Although both a living will and a will must be created during life, at a time when you have full mental capacity, they each operate at different times and will never operate at the same time. This is why you need to have both documents if you want to comprehensively express your end-of-life wishes.
Your living will generally only operates while you are alive, but otherwise unable to make your own medical choices. There may be an exception if you indicate preferences for the disposition of your remains upon your death, such as whether you want to be cremated or donate organs, but these are often indicated in your will.
Your living will focuses on notifying your family and your medical care providers of your preferences regarding life-sustaining treatment. This is necessary when you're unconscious or incapacitated but still alive.
Your will, by contrast, only becomes effective upon your death. It helps your family and the state of your to carry out decisions regarding the property in your estate and how you want it to be administered after you are deceased. A will cannot operate during life and, therefore, can never operate at the same time as a living will.
Living wills and wills address different legal issues
Although living wills and wills are both legal documents that the law recognizes and enforces, they each address very different legal issues relevant to your end-of-life decisions. Living wills address life-sustaining medical decisions.
Wills address primarily financial decisions and the disposition of real property and personal assets upon your death.
Living wills and wills are governed by different laws
Although living wills and wills are both governed by the specific laws of individual states, each state applies different laws to the validation and enforcement of each document.
Living wills have their own dedicated state laws specific to them only. These state laws also may be limited in scope. While they aren't the same, there are other laws applicable to other legal documents similar to a living will.
However, every state applies a different set of rules, called “probate” laws, that applies to wills. Probate laws can include specific rules for when you have a will and other rules (called the “rules of intestacy” or “intestate” laws) for when you don't have a will or when your will doesn't cover all of the property in your estate.
Living wills and wills differ in how you delegate authority
Although living wills and wills both allow you to make decisions in advance, they differ with respect to whether you can delegate authority to make decisions.
In a living will, you can make decisions about specific medical procedures that you will accept or reject if you are ever in an unalterably incapacitated state. You also can appoint someone to make these decisions for you if you're confronted with a situation that requires a decision that you didn't indicate in your living will. If you don't appoint someone to make the decisions you would have made, a doctor may confer with your next of kin to make a decision for you.
In a will, however, your decisions are final. Although you designate an executor to administer your estate according to the wishes you expressed in your will, there's no opportunity to have someone make on-the-spot decisions for you after your death.
Any decisions that you didn't think of or make in your will with regard to property left in your estate can end up being dispersed according to the laws of intestacy. These are laws determined by individual state legislatures regarding how your property will be distributed. You can't appoint someone in your will to make these decisions for you later.
Living wills and wills are different in their finality
In theory, living wills and wills are both intended to be final and used only once. But it's possible for a living will to be effective on different occasions, whereas a will is never effective more than once after you die.
A living will is meant to be employed when you're in a permanent state of incapacity and doctors believe you have no chance of recovery. The issue of a living will normally arises when your decision about removing life-sustaining treatment may result in death. However, it's possible that you could survive your condition after life-sustaining treatment is suspended, or if you choose in your living will for life-sustaining treatment to be employed and your condition improves after said treatment.
Under these circumstances, unless you subsequently revoke your living will, it will continue to be effective again if you are ever confronted with another life-threatening injury or illness and are incapacitated when the question of life-sustaining treatment again arises.
However, because your will only becomes effective when you are deceased, it is final. There's no other occasion when your will can be reinvoked or amended to be effective again or apply differently.
Living Wills and Wills Are Different Legal Documents — You Need Both in Your End-of-Life Plan
Living wills express your preferences for life-sustaining medical treatment during life. Wills express your preferences for financial and property distribution issues after death. If you want comprehensive input on all your medical and financial issues before and after your death, you should have both these documents as part of your end-of-life plan.
It is impossible to control the possibility that you may not be able to make decisions for yourself down the road due to a medical emergency. Consider executing these legal documents now when you have the capacity to make these decisions for yourself.