Difference Between a Will and a Living Will

By A.L. Kennedy

A will, also known as a last will, distributes a person's property after his death. A living will, on the other hand, explains what kind of medical care that person wants when he is still alive but unable to explain his wishes. In most states, both a will and a living will have similar requirements as to format, but the two documents serve very different functions.

Purpose

The purpose of your will is to explain what you want done with your property when you are gone. It also allows you to name a guardian for your minor children. Your will does not legally take effect until after you die. Your living will, on the other hand, gives instructions to your family and doctors about how to treat you if you become incapacitated. You may explain what kind of care you do and don't want, as well as name someone to make your medical decisions on your behalf, according to FindLaw.

Format

Most states require that both a will and a living will be written documents. A handful of states accept oral wills, but no state accepts oral living wills, according to MedLaw Plus. Also, your will and your living will should both be signed by you and witnessed by at least two people. The requirements for witnesses to wills are different from those for living wills, so consult an attorney in your state before you choose the witnesses for each document.

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Process

A will goes through probate, the process of wrapping up your estate and giving your property to the people listed in your will. Probate is overseen by the probate court. If you named an executor in your will, he works with the probate court to wrap up your affairs. A living will, however, is not usually supervised by a court, but is instead given to your doctors and other healthcare professionals. If you give someone power of attorney in your living will, that person works with your doctors to make sure your wishes are carried out.

Results

The end result of your will, once probate is over, is that your debts are paid and the assets in your estate are given to the people you named in your will. The probate process involving your will ends when the work of distributing your estate is done. The process of following your living will, however, ends when you die or when you regain the ability to make your own medical decisions. In both cases, your executor or the person you have given power of attorney loses his power to direct your affairs when the process of following your will or living will is over.

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Statutory Will V. Living Will

A will is a declaration of how you want your assets distributed following your death. A statutory will is a simple type of will legally recognized by only a handful of states. A living will provides directions for carrying out your wishes regarding your health care if you become incapacitated and cannot make decisions for yourself. A regular will and a living will can work together as part of an overall estate plan.

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 issues. A living will allows you to express your end-of-life health care wishes. A last will and testament, usually referred to as a will, is the document you use to give directions for the handling of your affairs after your death. These documents are designed to work together; signing a living will does not replace your last will and testament.

Living Will Versus a Last Will

Living wills and last wills serve two different functions. A last will is what you think about in regards to testamentary documents. It sets forth how property will be divided. A living will, on the other hand, is a set of directives that must be followed in the event of a medical emergency.

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