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.

Wills

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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Is a Living Will Valid After Death?

References

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Can a Person Write Their Own Will & Then Have It Notarized?

In this age of technology, writing out a will by hand may not be the norm, but it is a perfectly acceptable alternative to typed or printed wills. The key to making an effective handwritten will is knowing your state laws regarding whether witnesses are required and, if so, how many.

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.

Is a Hand-Written Notarized Will Legal?

Your will can direct the distribution of your property after your death, name someone you trust to manage your estate and even nominate a guardian for your minor children. But your will can't do any of that if it isn't valid in your state. Generally, a handwritten will is just as legally valid as a typed or printed will as long as it meets your state's standards.

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