Living Will vs. Last Will

Living Will vs. Last Will

by Michelle Fabio, Esq., March 2016

Although the terms sound similar, living wills and last wills serve entirely different purposes. What follows is a brief overview of the differences between a living will vs. last will, including when you might consider making them and how they both function and are administrated.

What Is a Last Will and Testament?

A last will and testament is a legal document that details how a person wants his property to be distributed after his death. You can also name a guardian for your minor children in a will and name the people responsible for managing and distributing your property. Without a will, state law determines who will inherit your assets when you die.

Every state has laws pertaining the proper execution of a will, which usually include provisions such as the requisite state of mind of the person drafting the will (often described as “of sound mind”) and a certain number of witnesses required at the document's signing.

How Does a Last Will Work?

A last will only becomes effective after the death of the person writing the will, who is called a testator. In the will, the testator names an executor of the estate as the person who will administer, or carry out, the will’s provisions.

The executor is responsible for gathering all the estate’s property, keeping accounting records, and paying any taxes or outstanding debts of the estate. After all of that is taken care of, the executor can commence with distributing the decedent’s property to his beneficiaries as provided for in the last will.

A last will can be changed or revoked any time prior to the testator's death.

What Is a Living Will?

A living will is a legal document that details the medical directions a person wants followed in the event she becomes seriously ill or incapacitated and cannot communicate such decisions herself. Living wills often deal with matters such as feeding and breathing tubes as well as the use of life support and life-sustaining medical treatments.

A living will becomes effective when the person who has written it becomes incapable of communicating medical decisions and is in a specific medical condition specified by state law. An individual can also be authorized to communicate with the doctors and other medical personnel regarding what they can and cannot do according to the living will. This is generally accomplished through a health care power of attorney, which is often included with a living will.

A living will can also be changed or revoked at any time the person is still capable of doing so.

Main Difference Between Living Will and Last Will

As you can tell from above, the main difference between living wills and last wills is their function. While a last will directs the distribution of assets after a person’s death, a living will gives directions regarding the medical care of someone who is still alive although unable to communicate her wishes herself.

Will vs. Living Will: Who Needs Them?

Last wills and living wills should be considered by everyone. Both can provide you and your loved ones the peace of mind that your wishes will be followed—in the case of a last will, after your death, and with a living will, before. Practically, a last will can also make the probate process go more smoothly.

In both instances, creating them when you’re healthy allows you to consider your options carefully without immediate health concerns weighing on you. Moreover, you can also discuss your choices with your loved ones ahead of time so they are not left with difficult choices and without guidance as to your wishes. If you are undergoing surgery or are critically or terminally ill, a living will is essential and a last will is certainly recommended.

Quite simply, the best time to prepare these documents is now.

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