What is the Difference Between a Living Will and a Last Will and Testament?

A living will outlines a person's medical wishes in case they become incapacitated, while a last will and testament dictates the distribution of a person's assets after their death. It’s easy to confuse the terms living will and last will and testament, but they are completely separate legal documents and meet very different needs.

What is a living will?

A living will, sometimes called an advance directive, is a legal document that provides instructions regarding the medical care a person wishes to receive if he or she becomes incapacitated or seriously ill and cannot communicate their preferences themselves.

The details of living wills often include considerations such as whether the person would like life-sustaining medical treatments or feeding and breathing tubes to be used.

An attorney-in-fact is named in a living will (advance directive) to represent the interests of the living will’s owner. Through a medical power of attorney, this agent communicates with doctors and other medical personnel regarding the person’s desires, as expressed in the living will.

What is a last will and testament?

A last will and testament, also known simply as a will, is a legal document that provides instructions for what should happen to a person’s assets after his or her death. If a person dies without a will, they are said to be “intestate,” and state intestacy laws govern the distribution of the property of the decedent.

Note that it is also possible to name a guardian for minor children, as well as a person to manage their financial affairs, in a last will and testament. Quite simply, if you are a parent of a minor, you should absolutely have a will.

The person drafting the will, called the testator, chooses an executor of his estate who will carry out the will’s provisions through the probate process. The executor is responsible for gathering property, keeping financial records, and paying any outstanding debts and taxes, after which the executor can distribute the decedent’s property to beneficiaries as described in the will.