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“Last Will and Testament” vs. “Living Will”

“Last Will and Testament” vs. “Living Will”

Estate Planning LawyerClients sometimes approach our firm to purchase a specific document they have heard or believe they require to protect against a particular risk or problem.  Other clients come to us to learn about the purpose and process of estate planning more broadly and to determine if they need to develop a plan to protect their own interests.  Nearly all clients in the beginning are confused about the distinction between a “Last Will and Testament” (or “Last Will” or simply “Will”) and a “Living Will.”

A Last Will and Testament is the document most people intuitively think of as a Will.  A Last Will and Testament is a testamentary legal document that, upon the death of a person, exists as evidence of how the person desired his or her real and personal property to be distributed.  The Last Will is typically submitted to a state court as evidence in a court proceeding known as “probate,” which determines the distribution of assets and payment of outstanding liabilities left by a decedent.

The Last Will may be as simple as a one-page form or a substantial document of dozens of pages with sections and subsections addressing various legal, financial, and personal concerns of the client.  For those clients who require a trust to effectuate their estate planning goals, the Last Will may act as the funding mechanism designating their Revocable Living Trust as the recipient of non-trust property for the benefit of other persons or entities.  Alternatively, a skilled estate planning attorney may draft the Last Will to actually create a Testamentary Trust to hold the decedent’s property after death for the benefit of other persons or entities. The other persons or entities are typically family members, business partners, or charities important to the decedent.

A Living Will, on the other hand, does not address property but instead addresses the end-of-life wishes of clients.  Specifically, a Living Will expresses the desires of how clients wish to be allowed to pass away. Most clients elect for pain relief and to be kept in a comfortable state, even if the use of medications to achieve this results in accelerating the dying process.  However other clients, a minority in our practice, elect for all available means to be kept alive regardless of the expense to their estate or physical pain that results. There are also a spectrum of circumstances and choices clients choose in between the two most common elections.  The important distinction to remember is that a Living Will is the expression of a person’s desires as to how to be allowed to pass away. The people who often benefit most from the Living Will are often the family members who do not have to make the painful decision to end or prolong the life of a loved one who is nearing death.

In addition to the Last Will and Living Will, a basic estate plan for all people typically also includes a Financial Power of Attorney, a Healthcare Power of Attorney, and a HIPAA Waiver.  Because the legal authority of a parent ceases when a child turns 18 years old, the Citadel Law Firm recommends all adults aged 18 or over complete at minimum a Living Will, Healthcare Power of Attorney, and a HIPAA Waiver to allow their loved ones (often parents) to be involved in their medical decision making, if required.  In addition, because one of the most common sources of legal disputes (or “estate litigation”) among families of a deceased loved one is over a poorly drafted or improperly executed Last Will, we always recommended consulting with an estate planning attorney rather than going it alone with basic forms purchased online.

Thanks to our friends and contributors from Citadel Law Firm for their insight into estate planning.

 

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