Living Will Versus a Last Will

By Roberta Codemo

Living Will Versus a Last Will

By Roberta Codemo

It can be easy to confuse a living will and last will, the latter of which is also known as a last will and testament. While both documents are essential pieces of an estate plan, each serves a very different function. A living will sets out your healthcare wishes at the end of your life, while a last will sets out how your estate is to be handled after you die. It is important to understand the differences between the two documents when drafting your living will and last will.

Elderly man in blue knit and middle aged man in grey knit hold hands with small boy on road surrounded by trees with orange leaves

What Is a Living Will?

A living will is not really a will at all but rather a plan that lets a person manage their own end-of-life medical decisions so that they die with dignity on their own terms. Also called an advanced healthcare directive, a living will is a legal document that lets a person choose what life-sustaining medical actions to take should they suffer a life-threatening accident, injury, or illness and can no longer make decisions for themselves. Living wills are recognized in all 50 states and the District of Columbia, but the laws vary from state to state. Some states require you to fill out a standardized living-will form, while others let you create your own living will. The document does not go into effect until a medical provider certifies that you are in a permanent vegetative state or terminally ill and ends when you die.

When drafting a living will, talk with your primary care physician about your treatment options. Life-sustaining treatments include artificial nutrition and hydration, cardiopulmonary resuscitation, and mechanical ventilation, among others that prolong life without restoring the body's ability to function on its own. By having a plan in place, you can alleviate the stress on friends and family members during an emotional time and relieve them of making decisions about your medical care.

How to Administer a Living Will

A living will can designate a third party, also called a healthcare attorney-in-fact or healthcare agent, to act as an advocate on a person's behalf when they're unable to make their own healthcare decisions. Alternatively, a durable power of attorney for healthcare is a document that serves the same function as a living will. The only difference is that a durable power of attorney lets the attorney-in-fact exercise their own judgment when making medical decisions on your behalf. Make sure the person you name as your healthcare agent is a trusted friend or family member who understands and supports your medical decisions.

What Is a Last Will?

A last will is a legal document that lets a person communicate their wishes after their death. The person who writes the will, called a testator, can include instructions on how to divide the assets, who will care for any minor children, and who will administer the estate. While laws vary from state to state, a last will must meet the following requirements:

  • The testator must be at least 18 years old and of sound mind.
  • The last will must be signed and dated by the testator before two witnesses, who then sign and date the document.
  • The witnesses must be at least 18 years old.
  • The witnesses must not be beneficiaries.

A last will ensures that a person's family is taken care of after their death and is one of the most important documents that a person can create as part of their estate plan. The document names an executor to manage the estate until the probate proceeding ends and the assets are distributed to the beneficiaries named in the last will.

How to Administer a Last Will

After the testator dies, an executor makes sure the estate is in order and has a fiduciary duty to act in good faith. Because the executor plays such an important role, make sure the person you select is honest, organized, and trustworthy. Among an executor's duties are locating the deceased person's assets, finding and contacting the beneficiaries, wrapping up the deceased's financial affairs, setting up an escrow account, and paying outstanding bills and the estate's final income taxes. Once the estate's debts are settled, the executor distributes the remaining property to the beneficiaries.

It's a good idea to draw up both a living will and a last will. Each document plays an important role in your estate plan and, in the event of an accident or illness, your last wishes will be covered—both before and after your death.

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