What is the Difference Between a Will and Living Will?

Legal terms and legal document names can often be confusing. You might think that a Will and a Living Will, both having “Will” in the name, would be similar, but they are quite different. Understanding the difference between them illustrates the importance of having a comprehensive set of estate planning documents in place.

What is a Living Will?

A Living Will is a legal document wherein you indicate your wishes regarding end-of-life medical care, such as artificial nutrition and hydration, CPR, continuing or withdrawing life support, and resuscitation. A Living Will comes into effect when you have a substantial and irreversible loss of mental capacity and are either unable to eat and drink without artificial feeding (often due to being in a vegetative state) or have an incurable or irreversible condition. It supplements your health care proxy and is used as evidence of your wishes and intentions.

What is a Will?

In a Last Will and Testament, you set forth how and to whom your estate will be distributed upon your death. You appoint an Executor to manage your estate and financial affairs after your passing, and you make bequests and inheritance arrangements you desire, whether to family members, other loved ones, or charities. If you have minor children you can appoint a guardian and establish trusts for the management of their inheritance. Your Will can dispose of various types of assets, such as real estate, bank accounts, and investment accounts.

The Main Difference Between a Will and a Living Will

The main difference between a Will and a Living Will is that the Living Will controls end-of-life care and ensures your wishes are carried out whereas a Last Will and Testament is used after you have passed away to control the disposition of your assets in the manner you have specified.

Do You Need a Will, Living Will, or Both?

Everyone needs both a Will and a Living Will as part of their estate plan. A Living Will is an advance directive, which, along with a Health Care Proxy and Power of Attorney, makes sure that you have decision makers in place (with specific instructions for the medical treatments you desire) for both health care and financial decisions in the event of your incapacity. As soon as a person turns 18, they need these documents in place.

A Last Will and Testament is a part of your estate plan that handles the disposition of your assets after your death. In addition to a Will, you may also consider having a living trust in place which can offer asset protection (if irrevocable) and help avoid probate. Depending on the circumstances, the probate process can be long and costly, so having a living trust can be very advantageous. Like with a Living Will, anyone 18 or older should have a Last Will and Testament so that you control who your assets are left to and when your heirs should receive those assets. Without a Will, the state laws of intestacy will govern who receives your assets, which may not be what you want. For this reason, it is important to seek legal advice and meet with an estate planning attorney.

Want to Learn More? Speak with a New York Estate Planning Attorney!

Having a Will and a Living Will in place is essential and having an attorney or law firm focused on elder law and trusts and estates to assist you ensures that your documents will reflect your wishes. Contact an experienced estate planning attorney at Cona Elder Law today to make sure you have a comprehensive estate plan in place.