Standard Will Vs. Living Will

By Heather Frances J.D.

Planning your estate may involve creating several documents to address your end-of-life care before you die and your property after you die. Two of these documents may be a will and living will. A will directs the distribution of your assets after you die and a living will directs your health care while you are alive.

Planning your estate may involve creating several documents to address your end-of-life care before you die and your property after you die. Two of these documents may be a will and living will. A will directs the distribution of your assets after you die and a living will directs your health care while you are alive.

Wills

A will, sometimes called a last will and testament, is a legal document that explains how the maker of the will -- the testator -- wants his property to be distributed upon his death. The will may also nominate an executor, a person the testator trusts to distribute his property according to the instructions given in his will. If you have minor children, your will can nominate a guardian to care for your children after your death.

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Will Requirements

Every state has its own laws and requirements for making a valid will. These vary between states, but they generally require the testator to be at least 18 years old and to have testamentary capacity at the time he signs the will. Generally, testamentary capacity means you have the mental ability to fully understand your will and its importance. Many states also require that a will be signed in the presence of competent witnesses who have no interest in the validity of the will; the will may also be notarized. If your will is not valid, or if you die without a will, your property will be distributed according to your state's laws of intestacy, which provide a hierarchy of heirs to receive your property after creditors are paid.

Living Wills

Unlike wills, living wills do not include bequests of property. Instead, living wills direct your physicians and loved ones as they attend to your end-of-life health care. The living will communicates your preferences in medical care if you become incapacitated and cannot communicate your wishes. Living wills often address issues like whether you want life-sustaining medical treatments withheld or administered and commonly include directives about artificial respiration, hydration and nutrition.

Living Will Requirements

The requirements of a living will vary between states, but a living will is generally valid if it is witnessed by two competent witnesses and notarized. Often, the witnesses cannot be physicians involved in your care. If your living will is invalid or you don’t have one, your family usually will make your health care decisions.

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What Is a Typical Living Will?

References

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Disputes With a Living Will

A living will -- also known as an advance medical directive, advance health care directive or advance directive for a natural death -- is a document that states the creator's wishes regarding health care should he become incapacitated and incapable of making his own medical decisions. The living will may also appoint a second individual to make such medical decisions.

Illinois Laws on Wills

A valid will can nominate someone to manage your estate and detail how your property should be distributed when you die. In Illinois, wills must comply with the Illinois Compiled Statutes, which address requirements such as the age and mental condition of the person making the will. If your will doesn't meet these requirements, it may be declared invalid, and your estate will be distributed according to state law.

Are Living Wills Binding Documents?

When a living will is made in compliance with state law, it generally becomes legally binding. Although state laws vary, living wills generally include provisions related to end-of-life care and require the maker's and witnesses' signatures to make them legally binding. Some states require witnesses and a notary. You can use a template to make a living will, provided it is in compliance with your state's laws. Living will forms vary from state to state because each state has specific requirements. It is advisable to consult an attorney in your state to ensure your living will conforms to state law.

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