Does a Living Will Replace a Will?

By Valerie Stevens

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

A living will is used to communicate your health care wishes when you are no longer able, such as near the end of your life or if you become incapacitated. In this document, you specify whether you want life-sustaining medical treatment, such as artificial nutrition and hydration. In some states, a living will allows you to appoint a health care representative to help make decisions for you when you are incapacitated. In other states, a health care proxy is named in a different document. Many states have adopted a specific form to be used to declare your wishes. Generally, two witnesses must watch you sign the document. You can revoke a living will at any time. Medical providers often ask for a copy of your living will when you seek treatment.

Last Will and Testament

A last will and testament is the document you use to direct how you want your affairs to be handled after your death. In this document, you direct how your debts are to be paid and how your property is to be divided. You can also use this document to nominate someone to administer your estate or act as a guardian if you leave minor children. You can change your will at any time by attaching a statement called a codicil or you can revoke your will and write a new one. State laws dictate the formalities for signing wills, but usually two witnesses and a notary public must witness your signature. Some states allow you to register your will with the county recorder before you die, but most do not.

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Advanced Directives

Far-reaching advances in medical technology gave birth to the idea of advanced directives in the late 1960s. Prior to that time, decisions about the care of patients who could not communicate were left up to loved ones and doctors. As modern medicine increased the treatment options, decisions became far more complicated. By the end of the 20th century, all states had legalized some form of living will. If you do not have a living will in effect and you become incapacitated, your loved ones and doctors will have to make decisions for you, such as whether to remove life support or not. However, being without a living will would have no effect on the administration of your last will and testament.

Estate Administration

The choices you make in a living will won’t have any effect on how your affairs are handled after you die. If you do not have a last will and testament, your property will be distributed according to your state’s intestacy laws after your debts and taxes have been paid. Intestacy laws determine how your property is divided among your relatives as determined by state law – generally those related by blood or marriage. Intestacy laws vary, but usually property is distributed first to your spouse. If your spouse dies before you, property would go to your children. Next in line would be parents, followed by siblings, and so forth. The court handling your estate will appoint someone -- usually a relative -- to administer your estate.

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Standard Will Vs. Living Will
 

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Does a Living Will Expire?

A living will provides you with the freedom to determine how medical decisions should be made in the event you become unable or unwilling to make them for yourself. The document also allows you to appoint a health care representative to act on your behalf to carry out these wishes. Although state laws can vary, living wills generally do not expire while you are alive, absent special circumstances or your express intent.

Is a Living Will Valid After Death?

When you become unable to make your own medical decisions, someone else must make those decisions for you. A living will communicates your wishes to medical providers and trusted friends and family when you can’t. Since a living will does not provide directions for what happens after a patient dies, it is not valid after death.

Medical Power of Attorney Explanation

When you are competent to make your own medical decisions, your health care providers rely on you to help determine what treatments are best for you. But if you become unable to make your own health care decisions, the person you name in a health care power of attorney will work with health care providers in your stead. For example, if you name your sister as the agent to make your medical decisions in case you become incompetent, she will direct your medical care if you later develop dementia that makes you incapable of making your own health care decisions.

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