Living Will Versus a Last Will

By David Montoya

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.

How a Last Will Works

A last will becomes effective after the testator, or person who wrote the will, dies. It is a legally binding document that directs the probate courts to divide the property of the testator in a certain manner and to particular people called beneficiaries. The courts will try to determine the intent of the testator if any part of the will is ambiguous. The property of the testator will be administered once all the beneficiaries are identified and all the testator's obligations, such as taxes and debts, have been paid in full.

Administration of a Last Will

A last will is administered by an executor. The executor is named by the testator and is responsible for finding all the estate property and for taking care of taxes and outstanding debts. The executor must create a special bank account and keep all accounting records in order. The probate courts ultimately turn possession of the estate property over to the beneficiaries.

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How a Living Will Works

A living will gives specific medical directions to follow in the event that the testator is seriously ill, has been in a serious accident, or is otherwise gravely ill and not in a condition to give any directions. These directions will dictate how, or even if, life-sustaining medical treatment will be administered and for how long. A common example that appears often in living wills is the administration of feeding and breathing tubes. A living will may state that the testator does not wish to be kept alive by such artificial means. As such, the living will gives the legal authority to have the tubes removed.

Administration of a Living Will

A living will is controlled by an attorney-in-fact that is created through the power of attorney. This person is specifically mentioned in the living will and acts as the medical agent of the testator. The attorney-in-fact is the person who gives the actual directions to the doctors on what they can and cannot do. No other person has the authority to carry out the living will.

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Is a Living Will Valid After Death?

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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.

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.

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, 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.

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