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

By Michelle Kaminsky, J.D.

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

By Michelle Kaminsky, J.D.

Although both terms contain the word “will," a living will and a last will and testament are two separate documents that serve entirely different purposes: A living will concerns health care preferences while you are alive, whereas a last will expresses your wishes for the distribution of your property after your death.

Man in suit flicking through document while holding pen

State law governs both last wills and living wills, so you must be sure that your documents comply with your state's law in order for them to be valid.

Time

One major difference between a last will and a living will is the time at which they take effect. A last will has no legal impact until after the testator[the person who's writing the will]'s death, at which time it must be filed with a probate court.

A living will, on the other hand, takes effect while you are still alive, generally when you are incapacitated or seriously ill, often because you're in a coma or vegetative state during which you are incapable of communicating. State law or provisions within the document itself may also determine at which point a living will springs into action.

Agent

Both a last will and a living will can nominate an individual to make decisions and take actions on your behalf. A last will should name an executor, who will handle all of your estate's affairs, keep accounting records, pay any debts and taxes, and distribute your assets to your chosen beneficiaries.

A living will, on the other hand, may name someone as your health care agent who can make decisions about your medical treatment without court intervention. Some states require a separate durable power of attorney for health care, sometimes called the “attorney-in-fact," to work in conjunction with a living will, and these states call the two documents together an “advance directive."

More About Last Wills

In addition to expressing your preferences about the disposition of your personal and real property, a last will may also appoint a guardian for minor children or other dependents.

A last will cannot control the distribution of assets held jointly with another person or for which a beneficiary is already associated, such as in a retirement account or life insurance policy, the proceeds from which pass directly to beneficiaries outside of the probate process.

More About Living Wills

The essential function of a living will is to provide instructions to your health care providers and express your preferences for medical treatment. More specifically, in a living will, you can detail your wishes regarding whether or not to receive life-sustaining treatment, including artificial respiration and intravenous feeding, as well as other treatments and medical procedures.

The Importance of Having Both a Living Will and a Last Will

Overall, perhaps the most important point to remember about living wills and last wills is that, even though both documents provide instructions for situations during which you are unable to communicate, having one doesn't mean you don't need the other.

Both documents can help avoid disagreements and potentially costly and time-consuming litigation among your loved ones regarding either the distribution of your assets or your end-of-life treatment. Moreover, they can provide you the peace of mind of knowing your wishes will be followed when you cannot communicate them.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.