What's the difference between a living will and a will? We cover everything you need to know about each document and how they fit into your estate plan.
Many people use the terms "living will" and "will" interchangeably, but in reality, they refer to two very different legal documents. While both documents relate to end-of-life decisions and can be an important part of your estate planning, they serve different purposes and have different legal implications.
So, living will vs last will, what’s the difference? Let’s break down each and explore their different roles.
A living will is a legal document that outlines your wishes for end-of-life medical care in the event that you are unable to make those decisions for yourself. It typically covers situations where you are incapacitated or cannot communicate your wishes to your medical team.
In a living will, you can specify preferences related to your medical care, including:
You can also appoint a health care proxy, who will be responsible for making medical decisions on your behalf if you are unable to do so.
It’s important to note that living wills only go into effect if you cannot make your own healthcare decisions. (For example, if you were on life support or otherwise incapacitated and could not communicate your wishes).
A will, also known as a last will and testament, is a document that outlines how you want your property and assets to be distributed after your death.
Your will can also include instructions for the care of any minor children and the appointment of an executor, who will be responsible for carrying out the instructions in your will.
A will only goes into effect after your death and is used to distribute your property and assets according to your wishes through the probate process.
Note that laws vary by state, so the state law where you live will dictate certain things like the requirements for a valid will and how the probate process works. This is one reason many people work with a lawyer to draft their will, though there are also online resources if you are concerned about the cost of making a will.
The key difference between a will and a living will is the point at which each document takes effect and what issues they cover.
A living will goes into effect if you are unable to make your own medical decisions, such as if you are on life support or are terminally ill.
A last will goes into effect after a person's death.
A living will deals with medical decisions, while a last will and testament primarily deals with the distribution of your property and assets during the probate process.
While a living will is not necessary for everyone, there are several situations in which it can be a critical part of your estate plan.
If you have questions about your situation, consulting with an estate planning lawyer could be helpful.
But as a general matter, here are some categories of people for whom a living will makes sense.
If you have strong feelings about your end-of-life medical care, a living will is a useful way to ensure those wishes are respected. For example, if you are opposed to specific treatments or interventions, you can specify that those treatments should not be used.
Having a living will can also be helpful if you have certain preferences or values that you want to be taken into account when making healthcare decisions. For example, if you believe in keeping medical treatment as natural as possible, it can reflect those beliefs.
If you have appointed a health care power of attorney – also known as a health care proxy – a living will can be a valuable tool to help them make decisions on your behalf.
Your health care proxy, often a family member or person of trust, will be akin to a personal representative who is responsible for making medical decisions on your behalf if you are unable to do so. A living will can provide them with specific instructions and guidance.
Making end-of-life medical decisions can be emotionally challenging for your loved ones. You can take some of the burden off of family members and close friends by specifying your wishes in advance.
If you do not have a living will and you cannot make your own medical decisions, the court may need to step in to make decisions on your behalf.
This can be a lengthy and expensive process. It can also be difficult for your loved ones and family members, who may not agree on the best course of action.
Creating a living will can save time and money, and it can also ensure that your wishes are respected.
While the documents serve different purposes, they are both important pieces of your estate plan.
Together, a living will and a will can give you peace of mind that your end-of-life decisions and your final wishes will be respected.
If you have questions about how to get started with your estate plan, consider speaking with an estate planning lawyer. There's never a bad time to start estate planning.
In addition to comparing a living will to a will, several other comparisons are worth mentioning.
A living will and a durable power of attorney (POA) are often used together as they complement each other.
A living will outlines your specific wishes for end-of-life medical care, while a durable POA appoints someone to make decisions on your behalf.
Note that in the Living Will vs Power of Attorney consideration, the durable part is critical -- most powers of attorney lose effect if you become incapacitated, whereas a durable power of attorney remains in effect. (And keep in mind that a durable power of attorney is not limited to health care decisions and could cover financial decisions, for example).
The key thing to understand here is that living wills are a type of advance directive.
Advance directives are documents that allow you to express your healthcare preferences while you are of sound mind and in a position to do so. In this sense, the term advance directive is broader in scope and can also include other instructions, such as whether you want to donate your organs, for example.
Another common comparison is between a living will and a do-not-resuscitate (DNR) order. A DNR is a medical order that tells healthcare providers not to resuscitate you if your heart stops or if you stop breathing.
In this sense, a DNR is more specific and limited than a living will. There are some slight differences in who must sign each document for them to be valid.
A living trust, which is also sometimes called a revocable trust, is a type of trust that allows you to keep control over the terms of the trust as long as you are physically and mentally able to do so.
Thus, living trusts are a different estate planning tool entirely and might be used to help you keep assets out of probate rather than influence anything about your healthcare decisions or end-of-life care.
No, they are not the same thing.
A living will is a legal document that expresses the type of medical treatment a person would like to receive in certain circumstances when they might not be able to share those preferences. (For instance, if they were permanently unconscious or in a permanent vegetative state). It goes into effect when they become unable to make their own medical decisions.
Meanwhile, a will (formally known as a last will and testament) is a separate document that goes into effect after a person's death and covers issues like the distribution of assets, such as real property (i.e. real estate) or financial accounts.
Both documents play an important role in estate planning and are critical for ensuring your final wishes are respected and that your family members can grieve in peace.
As discussed, a last will and testament is the traditional name for what is commonly referred to simply as a "will." Thus, the differences between a living will and a last will and testament are the same differences discussed above, including:
So, what is the difference between a living will and a will? Let's recap the main takeaways.
A living will outlines your wishes for end-of-life medical care, while a will (or last will and testament) outlines how you want your property and assets to be distributed after your death. Both documents can play an important role in your estate plan.
If you have any other questions or are interested in getting either document put in place, it may be worth speaking with an estate planning attorney.
And if you do consult with a lawyer, here are the key questions to ask an estate planning attorney in your first meeting.
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