Standard Will Vs. Living Will

By Heather Frances J.D.

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.


A will, sometimes called a last will and testament, is a legal document that explains how the maker of the will -- the testator -- wants his property to be distributed upon his death. The will may also nominate an executor, a person the testator trusts to distribute his property according to the instructions given in his will. If you have minor children, your will can nominate a guardian to care for your children after your death.

Will Requirements

Every state has its own laws and requirements for making a valid will. These vary between states, but they generally require the testator to be at least 18 years old and to have testamentary capacity at the time he signs the will. Generally, testamentary capacity means you have the mental ability to fully understand your will and its importance. Many states also require that a will be signed in the presence of competent witnesses who have no interest in the validity of the will; the will may also be notarized. If your will is not valid, or if you die without a will, your property will be distributed according to your state's laws of intestacy, which provide a hierarchy of heirs to receive your property after creditors are paid.

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Living Wills

Unlike wills, living wills do not include bequests of property. Instead, living wills direct your physicians and loved ones as they attend to your end-of-life health care. The living will communicates your preferences in medical care if you become incapacitated and cannot communicate your wishes. Living wills often address issues like whether you want life-sustaining medical treatments withheld or administered and commonly include directives about artificial respiration, hydration and nutrition.

Living Will Requirements

The requirements of a living will vary between states, but a living will is generally valid if it is witnessed by two competent witnesses and notarized. Often, the witnesses cannot be physicians involved in your care. If your living will is invalid or you don’t have one, your family usually will make your health care decisions.

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Does a Living Will Replace a 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.

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 decisions or communicating your wishes to your physicians and family. A living will, power of attorney for health care or power of attorney for finances can direct your health care or give others authority to act on your behalf.

Healthcare Proxies Vs. Living Wills

It is important to communicate with your doctor when medical care must be administered. Being able to convey your wishes and make decisions is the key to controlling what form of treatment and care you receive. An advance directive, such as a living will, makes it possible for you to put your wishes in writing ahead of time, so they can be followed if you are too sick or injured to consult with your doctor. A health care proxy, another form of advance directive, allows you to appoint someone to make health care decisions for you.

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