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On Behalf of | Aug 12, 2015 | Wang IP Law Blog

There is a common misconception that last wills and living wills are essentially the same. Last wills and living wills, though similar in sound, are two entirely different pieces of documents serving different purposes. It is important to know the difference between the two in order to correctly protect your assets.

Last Wills

A last will and testament is a document that sets forth how a person wants their assets to be distributed after they have passed away. It will only be effective once the writer of the will, also known as the testator, has passed away. A last will directs the probate court on how their assets should be distributed to the beneficiaries of the will.

In order for a will to be valid, there must be a proper execution of the will. A valid will must be written when the person drafting the will is of sound mind and not being pressured by anyone. It must also be signed with witnesses present who are not related to the writer. Within the will, the testator will name an executor to carry out the will. The executor will be responsible for ensuring that the wishes of the testator are carried out accordingly. After doing so, the executor will see to the distribution of the estate, making sure the decedent’s property is given to the intended beneficiaries.

Without a last will, the probate court will determine how the estate is passed on through a strict hierarchy of relatives. This is not preferable as one will not have control over how their assets are distributed.

Living Wills

A living will differs from a last will in that a living will is a document that provides specific medical directions in the event that the testator falls ill and is incapable of giving directions. Living wills deal with issues such as feeding tubes, the use of life support, and life sustaining medical treatments. When the testator becomes incapacitated, a living will becomes effective. The living will may also state whether or not the testator wants to be kept alive through artificial means. A living will can also specify whether or not the testator’s organs will be donated upon death.

A living will is administered by an attorney-in-fact, created through the power of attorney. The attorney-in-fact will have the power to make decision in private, business, and financial matters for the testator. This person must be mentioned in the living will and will act as the agent to the testator. They are the only person allowed to carry out the living will and is the only person allowed to give medical directions to the doctors.

The Difference

A last will has the ability to establish guardianship for minor children while a living will cannot. Last wills are required to be probated in court, so the details of the will may become a matter of public record. However, since a living will requires no court involvement, those details will be kept private between the family members and the physician.

The assets listed in both wills will automatically be distributed upon the death of the testator. Since last wills go through probate, it will take longer for the beneficiaries to receive the assets. Both a living will and a last will can be changed or revoked at any time before the testator’s death.

Though entirely different, the creation of both documents should be considered. While a last will directs the distribution of assets after death, a living will regards the medical care the testator requires once they become incapacitated. If you are terminally ill, drafting both a living will and a last will is highly recommended and will benefit your family by reducing the negative impacts of death.