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

By Joseph Nicholson

A living will and a last will and testament are two completely different types of documents that are used for entirely different purposes. Both are intended to provide instructions for situations during which you are unable to communicate, but having one does not mean you don't need the other. A living will is exclusively focused on health care decisions while you are alive. A last will expresses your preferences after you have died.


A major difference between a will and a living will is the time they take effect. A will has no legal impact until after you're dead, 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, a living will does not go into effect until you are incapacitated, often because you're in a coma or vegetative state in which you are incapable of communicating. Law for Seniors recommends a living will as a useful way to avoid costly and time-consuming litigation among family members about your end-of-life treatment.


Both a will and a living will can nominate an individual to make decisions and take action on your behalf. A will should name an executor, who will inventory your estate, pay your obligations and distribute the residue amongst your beneficiaries. However, the probate court has the final word on who is appointed executor. A living will can appoint someone as your healthcare agent, who can make decisions about your medical treatment. The healthcare agent does not have get prior approval from a court. Some states allow your healthcare representative to donate your body or organs, or to make arrangements for your burial, tasks that must usually be resolved before an executor for your estate is appointed.

Protect your loved ones. Start My Estate Plan

Advanced Directive

The essential function of a living will is to provide instructions to your health care providers and express your preferences for treatment, which is why in some states it is referred to as an advanced healthcare directive. An advanced directive can signal whether you want to receive all possible life support treatment, including artificial respiration and intravenous feeding. Similarly, your living will can reflect the fact that you do not want to receive life support. You can also express preferences for or against other specific treatments and medical procedures.

Testamentary Disposition

A last will and testament also expresses your preferences about the disposition of your personal and real property and other assets. You can also use a will to appoint a guardian for your minor children or disabled family members. The directions expressed in your will can only be carried out to the extent any property remains after your debts are satisfied. Assets held jointly or for which a beneficiary is associated, such as a retirement account or life insurance policy, are not subject to probate and are not controlled by a will.

Protect your loved ones. Start My Estate Plan
Is a Living Will Valid After Death?



Related articles

Standard Will Vs. Living Will

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.

Power of Attorney & Mental Illness

One way you can help a relative or friend living with mental illness is to become his agent through the creation of a mental health power of attorney. A mental health POA is a legal document that makes you a substitute decision maker in situations where your loved one is unable to make treatment and self-care decisions due to a recurrence of mental illness. The mental health POA contains language reflecting your loved one's treatment preferences.

Description of Advance Directives, Living Wills, & Code Status

Headline-grabbing circumstances such as the case of Terri Schiavo, who spent more than a decade in a vegetative state, illustrate the complications that can arise when there are no clear instructions in place concerning catastrophic illness or end-of-life care. Advance directives, code status and living wills are three instruments that can provide guidance to your family and to medical professionals about your medical treatment. Having these kinds of instructions in place can provide direction for your medical care if you should become incapacitated.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

Does a Living Will Replace a Will?

A living will and a last will and testament are both part of a comprehensive estate plan, but they deal with different ...

Difference Between a Will and a Living Will

A will, also known as a last will, distributes a person's property after his death. A living will, on the other hand, ...

Difference Between Living Will & Durable Power of Attorney

At some point, perhaps toward the end of your life, you may need help taking care of your finances, making medical ...

Healthcare Proxies Vs. Living Wills

It is important to communicate with your doctor when medical care must be administered. Being able to convey your ...

Browse by category
Ready to Begin? GET STARTED