What Is the Difference Between Living Will and Last Will

There is a marked difference between living will and will, even though they both contain the word “will.” There is a common misconception that living wills and last wills and testaments meet the same purpose, but they are vastly different legal documents.

What Is a Living Will?

The purpose of a living will is to detail the medical directions a person would like followed in the event that he or she becomes seriously ill or incapacitated and cannot communicate these decisions. The use of feeding tubes and breathing tubes, as well as life support and other life-sustaining medical treatments, are often included in living wills. As long as the person is still capable of making changes, he or she can revoke a living will at any time.

A living will becomes effective when the person who wrote it becomes incapable of communicating his or her own medical decisions and is in a specific medical condition specified by state law. Additionally, a living will can be used to authorize a person to communicate with medical professionals about what they can and cannot do. Generally, this is accomplished with a health care proxy, which is usually included with a living will.

What Is a Last Will and Testament?

When a person dies, his or her last will and testament, also known simply as a will, provides instructions for what should happen to the deceased’s assets. When a person dies without a will, he or she dies intestate, and state intestacy laws then determine what happens to the decedent’s property.

If you have minor children, you should have a will. In your will, you can also name a guardian for your children and an individual to manage their financial affairs. An executor is appointed by the testator, the person who drafted the will, to carry out the estate’s provisions through probate. After collecting the decedent’s property, keeping financial records, and paying any outstanding debts and taxes, the executor will then be able to distribute the decedent’s property to his or her beneficiaries.

Who Should Keep Your Living Will?

As well as providing copies to your primary physician, you should give copies of your living will to the other medical professionals that you visit. Also provide a copy of your living will to the person you have appointed as your attorney-in-fact if you have a durable power of attorney for health care. Giving copies of your living will to close family members may also be possible, but you may not want to do so if you think they will not honor your end-of-life wishes.

Who Should Keep Your Last Will and Testament? 

Above all, a person’s last will and testament must be kept in a safe place that can be accessed upon the person’s death. Who should keep your will often depends on who has the safest location for the will. Accordingly, you can keep your will in any of the following places.

In a safe place in your home

Choosing a metal box or home safe that is fireproof and waterproof may be a good option. It is important to let your executor know where your will is and ensure that he or she will have access to your home after you pass away before you choose this location. Also, if your safe or box has a lock or combination, ensure that your executor knows how to open it.

With your executor

The executor is the one who will ultimately need your will, so giving him or her the original may make sense, as long as a safe place is available to store it. Be sure that your executor is someone you can trust if you choose this option since you may need your will back someday to make changes. When your executor receives your will, he or she will likely be able to read it. You may, however, seal your will and instruct your executor not to open it until your death if you wish to keep it private until you pass.

In a less safe place in your home

Keeping your will at home has the benefit of ensuring that you will be able to access it easily and that its contents are more likely to remain private until you’ve passed away. If you keep your will at home but do not have a fireproof and waterproof place, it may be damaged or stolen. As mentioned, make sure that your executor has access to your will if you decide to keep it at home.

In a safe deposit box

Safe deposit boxes can be found at many banks. It is a secure box, but your executor may have difficulty accessing it after you have passed away. If the box is in your name alone, it can likely be opened only by a person authorized by the court—and then only in the presence of a bank employee. Confirm with the bank that your executor will have access to the box if you choose this option. Give your executor a key and instructions on accessing the box in the event of your death.

With your attorney

You can expect your will to be stored in a secure location in your attorney’s office if you ask him or her to do so. Tell your executor if your attorney is keeping your will. Please note that law offices change hands regularly. In that case, your executor may have difficulty locating your will, and the office may have difficulty finding it.

In digital archives

Although keeping a digital copy of your will is not a bad idea for reference, probate courts often require the original signed copy, which a digital copy cannot replace.

Difference Between Living Will and Last Will

When comparing a last will vs living will, the last will specifies who should inherit a person’s property after his or her passing. In contrast, a living will specifies what treatment a person wants if he or she cannot communicate those wishes. There is a difference between a last will and a living will, but both documents help to ensure that a person’s affairs are taken care of per his or her wishes.

Do I Need an Attorney To Create a Living Will or Last Will and Testament?

If you need a living will, you may not need an attorney. Living will forms are available online that make it easy to express a person’s medical wishes. While it might be okay for a person with few assets and no children to write his or her own last will and testament, the document must be properly signed and witnessed to be valid.

If you speak with an experienced probate attorney in your state about these documents, you can feel confident that he or she will execute them according to your wishes. As part of a comprehensive estate plan that could include other legal documents, such as living trusts and powers of attorney, an estate planning attorney can help you determine how to create a last will and testament vs living will.

Living Will vs. Last Will—Conclusions

If you have been unsure about whether to choose a living will vs will, a last will and a living will should both be considered. Both documents can provide you and your loved ones with peace of mind that your wishes will be followed, whether you become incapacitated or die. Additionally, a last will can make the probate process easier for your loved ones.

Consider your options carefully so you can create these documents while you’re healthy. Moreover, you can also discuss your choices with your loved ones in advance so they won’t have to make difficult choices without knowing your wishes. When you undergo life-sustaining medical treatments, such as surgery, or if you are critically or terminally ill, it’s not a matter of living will vs last will and testament. Both a living will and a last will are essential for different reasons.

Article by Megan Thompson

Megan Thompson is a legal writer at Lawrina. Megan writes about different law practice areas, legal innovations, and shares her knowledge about her legal practice. As a graduate of the American University's Washington College of Law she is an expert of law in Lawrina's team and has a slight editing touch to all content that is published on the website.

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