What Is the Difference Between a Living Will and a Last Will and Testament? by Michelle Kaminsky, Esq.

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

Not sure if you need a living will, a last will and testament, neither, or both? Find out how these estate planning tools differ and which one may be best for you.

by Michelle Kaminsky, Esq.
updated August 06, 2020 · 3 min read

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.

Read on for more information on a living will vs. last will, including the differences between them, how they work, and who might consider each one—and when.

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 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 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.

Difference Between Living Will and Last Will

Other than the fact that a living will and a last will serve different purposes, another major difference a living will and a last will is when they take effect. A last will and testament doesn’t take effect until after the person’s death but a living will comes into play while the person is still alive but incapacitated.

Living Will vs. Last Will?

Perhaps you are wondering whether you need a last will or a living will. Well, the answer is easy, because just about everyone should have both. Each offers you the peace of mind that your wishes will be followed when you can’t make them known either because of incapacitation or death.

In the case of a last will and testament, having one can also make the probate process go more smoothly, and with a living will, it can provide guidance to your loved ones in making difficult decisions during a trying time.

So when should you get a living will and a last will?

That’s another easy question to answer, because there’s no time like the present. No one can predict the future, so the sooner you have your preferences recorded in a living will and last will and testament, the better.

LegalZoom can help you create a last will or living will online. Last wills and living wills are customized based on your needs and both are backed by a $50,000 Peace of Mind guarantee

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Michelle Kaminsky, Esq.

About the Author

Michelle Kaminsky, Esq.

Freelance writer and editor Michelle Kaminsky, Esq. has been working with LegalZoom since 2004. She earned a Juris Docto… Read more