Living Will versus a Will

As an estate planning lawyer in Folsom, I often times advise clients who are a bit overwhelmed by all of the estate planning terminology. This is understandable, as there is quite a bit.  One of the common areas of confusion is between a will and a living will. A living will and a will serve different purposes and are distinct legal documents used in estate planning and healthcare decision-making. Here’s a breakdown of each document and their purposes:

Living Will:

1. Purpose: A living will, also known as an advance healthcare directive, is a legal document that outlines a person’s medical treatment preferences and decisions in case they become unable to communicate their wishes due to incapacity.
2. Healthcare Decisions: A living will specifically addresses healthcare decisions and medical treatments. It can include instructions about life-sustaining treatments, such as resuscitation, mechanical ventilation, tube feeding, and organ donation.
3. End-of-Life Care: Living wills are often used to express a person’s preferences for end-of-life care, including whether they want to receive or withhold certain medical interventions when there’s no reasonable hope of recovery.
4. Designation of a Healthcare Proxy or Representative: In some cases, a living will may be accompanied by a healthcare proxy or durable power of attorney for healthcare. This document designates an individual to make medical decisions on the person’s behalf when they cannot make decisions for themselves.
5. Legal Requirements: Living wills are subject to state laws, and the requirements for creating and executing them can vary by jurisdiction. It’s important to create a living will in compliance with your state’s laws. In California, the Advance Directive for Health Care incorporates both the living will and the healthcare proxy and is fairly comprehensive. It must be signed by two witnesses and by the health care representative(s). 
6. Triggering Event: A living will takes effect when specific conditions or criteria are met, such as a declaration of incapacity by a physician. It is typically used during critical healthcare situations.

Last Will and Testament (Will):

1. Purpose: A last will and testament, commonly referred to as a will, is a legal document that specifies how a person’s assets and property should be distributed after their death. It does not address healthcare decisions.
2. Asset Distribution: A will primarily deals with the distribution of assets, such as real estate, personal property, bank accounts, investments, and other possessions.
3. Executor and Guardianship: A will appoints an executor or personal representative who is responsible for managing the estate and ensuring that the deceased person’s wishes regarding asset distribution are carried out. It can also designate guardians for minor children.
4. Creditor Claims: Wills can address the payment of debts and obligations, specify gifts to individuals or organizations, and name beneficiaries for various assets, such as life insurance policies or retirement accounts.
5. Probate Process: The instructions in a will are carried out through the probate process, which is supervised by the court. This process involves validating the will, settling debts, and distributing assets according to the will’s instructions.
6. Posthumous Affairs: A will takes effect after the person’s death and applies to the management and distribution of their estate.

Conclusion

In summary, a living will deals with healthcare decisions and end-of-life care preferences, while a last will and testament primarily addresses the distribution of assets and property after a person’s death. Both documents play essential roles in estate planning, but they serve different functions and are used at different stages in life. It’s often advisable to have both a living will and a will to cover both healthcare and asset distribution aspects of your estate planning. If you are seeking the guidance of an experienced Folsom estate planning lawyer or have questions about wills or living wills, contact Thapar Law at 916-579-0605 or send us a message.