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 administered.
What is a last will and testament?
A last will and testament is a legal document that specifies how you want your property distributed and your affairs handled after your death. Without a will, state law determines who will inherit your assets.
A last will allows you to:
- Designate beneficiaries to receive specific assets
- Name a guardian for your minor children
- Appoint an executor to manage and distribute your estate
Every state has laws pertaining to 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")
- 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.
What is a living will?
A living will is a legal document that details the medical directions a person would want if they become seriously ill or incapacitated and can't communicate such decisions themselves. Common decisions addressed in a living will include:
- Use of mechanical ventilation or breathing tubes
- Artificial nutrition and hydration (feeding tubes)
- Resuscitation preferences (DNR orders)
- Pain management and comfort care
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 can't do according to the living will. This is generally accomplished through a healthcare power of attorney, which is often included with a living will.
How hospitals use living wills
If you've ever been admitted to a hospital, you've likely been asked whether you have a living will. Hospitals ask this question during admission to ensure they have documentation of your wishes before an emergency arises. This practice is required under the Federal Patient Self-Determination Act, which mandates that healthcare facilities inform patients of their rights to make medical decisions in advance.
Having a living will on file allows medical teams to act quickly in emergencies according to your wishes, rather than defaulting to all life-sustaining measures while family members scramble to make difficult decisions. It also helps healthcare providers avoid potential legal issues and conflicts among family members who may disagree about treatment.
For this reason, it's wise to bring copies of your living will to any hospital admission and ensure your healthcare power of attorney agent knows where to find the document. Some people also keep a card in their wallet indicating they have a living will and where it can be located.
What are the limitations of living wills?
While a living will is an important planning tool, it does have limitations worth understanding. The most significant is that a living will can’t cover every possible medical scenario. It's limited to specific situations defined by state law, typically terminal illness or permanent unconsciousness. Complex medical situations that don't fall neatly into these categories may leave doctors without clear guidance.
Living wills can also be too specific or too vague to be useful in actual medical situations. If your living will specifies "no breathing tubes," for example, does that apply to a temporary measure during routine surgery? Conversely, general language like "no heroic measures" can be interpreted differently by different medical providers.
Additionally, family members or doctors may sometimes disagree with or challenge the directives, particularly in emotionally charged situations.
This is why having both a living will and a healthcare power of attorney is recommended. The living will provides guidance on your wishes, while the healthcare agent can interpret those wishes and make decisions in situations not explicitly covered.
What is the main difference between living will and last will?
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 medical care while you're still alive but unable to communicate.
| Last will | Living will | |
| Purpose | Distributes assets after death | Directs medical care during incapacity |
| When it takes effect | After death | While alive but incapacitated |
| Who carries it out | Executor | Healthcare agent or medical providers |
| Can be changed | Yes, until death | Yes, while mentally capable |
Living will vs. power of attorney: What's the difference?
A living will and a healthcare power of attorney (also called a healthcare proxy or medical power of attorney) are both advanced healthcare directives, but they serve different functions.
- A living will provides specific written instructions about what medical treatments you do or don't want.
- A healthcare power of attorney designates a trusted person to make medical decisions on your behalf when you can't.
Think of it this way: Your living will is the rulebook, and your healthcare power of attorney agent is the person authorized to use that rulebook. Make judgment calls when the rulebook doesn't cover a specific situation. Your agent can speak with doctors, review medical records, and authorize or refuse treatments based on your known wishes and values.
| Living will | Healthcare power of attorney | |
| What it does | Specifies your treatment preferences | Names someone to make decisions for you |
| Decision-making | Limited to scenarios you anticipated | Flexible; can address any medical situation |
| Who acts | Medical providers follow your written instructions | Your designated agent speaks for you |
| Best for | Clear end-of-life treatment preferences | Ongoing medical decisions during incapacity |
Most estate planning attorneys recommend having both documents. Together, they ensure your wishes are documented and that someone you trust can step in when decisions need to be made quickly or when circumstances don't match what you anticipated in your living will.
How does a living trust compare to a will and living will?
Adding to the confusion around similar-sounding terms, a living trust is yet another estate planning document. It serves an entirely different purpose than either a living will or a last will.
- A living trust is a legal entity you create during your lifetime to hold and manage your assets.
- You transfer property into the trust, and a trustee (often yourself while you're alive) manages it according to the trust's terms.
The key benefits of a living trust include:
- Assets held in the trust pass directly to your beneficiaries after your death. They don’t have to go through probate, the court-supervised process of distributing a deceased person's estate.
- It saves time, reduces costs, and keeps your affairs private since probate records are public.
Here's how all three documents compare:
| Last will | Living will | Living trust | |
| Purpose | Distributes assets after death | Directs medical care | Manages and distributes assets |
| When active | After death | During incapacity | During life and after death |
| Goes through probate | Yes | No | No |
| Provides privacy | No (public record) | Yes | Yes |
A living trust does not replace a last will, but the two can and should work together for a comprehensive estate plan.
- While a trust handles assets placed into it, you'll still typically need a "pour-over" will to catch any assets not transferred to the trust during your lifetime.
- A last will is also helpful to name guardians for minor children, something a trust can’t do.
A living trust does not replace a living will. They address completely different concerns:
- A living trust deals with your property
- A living will deals with your medical care
A comprehensive estate plan often includes a living trust for assets, a pour-over will for remaining property and guardianship, and a living will (plus healthcare power of attorney) for medical decisions.
Will vs. living will: Who needs what?
Last wills and living wills should be considered by everyone. Both of these documents 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 death. 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. According to Pew Research, most Americans don't have either until their 70s. You can also discuss your choices with your loved ones ahead of time so they are not left with difficult decisions.
If you are undergoing surgery or are critically or terminally ill, a living will is essential, and a last will is certainly recommended.
Do you need both documents?
Yes, you need both a last will and a living will because they address completely different aspects of your life and death that don't overlap.
- A last will controls what happens to your property and who cares for your children after you die.
- A living will controls what medical treatment you receive if you become incapacitated before you die.
Having only one document leaves critical decisions unaddressed.
Consider what happens without each document
- If you have a living will but no last will, state intestacy laws would determine who inherits your assets. It may not align with your wishes, and a court will decide who becomes guardian of your minor children.
- If you have a last will but no living will, your family may face agonizing decisions about whether to continue life support or pursue aggressive treatment, with no guidance about what you would have wanted.
Comprehensive estate planning typically includes both documents, along with a healthcare power of attorney. Depending on your assets and circumstances, you may also benefit from a living trust. These documents can often be created together, ensuring they work in harmony to protect you and your loved ones.
Quite simply, the best time to prepare these documents is now.
FAQs about estate planning
Can I change my last will and testament?
Yes, a last will can be changed or revoked any time prior to the testator's death. You maintain full control over your will as long as you are alive and of sound mind.
Can I change my living will?
A living will can be changed or revoked at any time the person is still capable of doing so.
Michelle Kaminsky, contributed to this article.
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