Lawyers love to be confusing.
We use insane-sounding words from Latin and Greek and some other languages that I’m pretty sure are completely made up.
Words such as testator, force majeure, per stirpes, and inter vivos.
Our words are so weird, we have to italicize them.
So I’m not surprised when someone asks me whether a Last Will and Testament and a Living Will are the same thing.
After all, both documents have “Will” in their names, right? It would only be reasonable to think that they are similar.
But they are not similar. They are very, very different.
So I’m going to cut through the legal jargon and explain the differences between Wills and Living Wills — and help you decide which one might be best for you.
I also created a guide to Legalese For Non-Lawyers, which you can download for free by clicking this nice big button:
Last Will and Testament vs. Living Will
Before diving into specifics, it’s first helpful to know how to define estate planning:
An estate plan ensures (1) that the right people are able to care for your SELF in the event you become incapacitated and (2) that the right people are able to get your STUFF in the event of your death.
Every estate planning tool fits into one of those two categories, and a good estate plan should address both areas of focus.
And as luck would have it, I will be discussing both categories in this post.
Related post: Estate Planning Basics You Need to Know
Last Will and Testament
A Last Will and Testament falls into the second category of estate planning.
If you don’t have an estate plan, state law decides who gets your assets (your “stuff”) when you die.
These laws (often called “intestacy laws”) generally provide that your estate will go to your blood relatives, if you do not have an estate plan.
Depending on the circumstances, however, your assets could end up going to the state.
Without an estate plan, you won’t get any say in what happens to your assets.
A Last Will and Testament, on the other hand, allows you to change those default settings and leave your assets to whomever you wish.
For example:
You can leave your estate to someone who is not a blood relative — someone who, without an estate plan, would not be able to inherit from you at all.
You can leave money to a church or other charitable organization.
You can disinherit a relative whom you do not want to inherit part of your estate.
You can leave everything to your dog. (This happens more often than you think…)
Whatever you choose, you get to decide. Not the state.
In addition to saying who receives your estate, a Will also states who will be in charge of your estate during probate — because, unlike a Trust, a Will must be probated.
Related post: What is the Difference Between a Will and a Trust?
Putting the right person in charge of your estate (called an “executor” or a “personal representative”) can make a world of difference for your heirs.
And putting the wrong person in charge can cause a lot of pain.
Lastly, it is important to note that a Will only takes effect after you die. Your Will does not say what happens to your estate during your lifetime but after your death.
Why does this matter?
Because you can amend or revoke your Will or write a new Will at any time, as long as you are competent.
What matters is which Will is your Last Will and Testament.
Living Will
Unlike a Last Will and Testament, a Living Will falls into the first category of estate planning identified above:
It provides for your medical care (care for your “self”) if you become incapacitated.
Especially during this pandemic, it is important to ensure that someone can make health care decisions for you if you cannot do so yourself.
Related post: Coronavirus: Why You Need a Power of Attorney
A Living Will allows you to state your preferences for certain end-of-life decisions.
You can provide, for example, that you do not want to be connected to life support if you are in a coma but that you do want a feeding tube.
Or if you can say that if you have an end-stage condition (e.g., Alzheimer’s), you do not want your life to be unnecessarily prolonged.
There are no wrong answers to questions like these.
What matters is that you let your loved ones know what you want, so that they can ensure your wishes are followed.
It is important to understand that a Living Will is NOT the same as a “Do Not Resuscitate” (DNR) Order.
If you are severely injured in a car crash, for example, EMTs will do whatever they can to revive you and keep you alive — even if your Living Will says you don’t want life support.
A DNR means what it says: that you do not want to be resuscitated.
Regardless of what your Living Will says, doctors will do whatever they can to make you well again. The Living Will only come up if you are not going to recover.
Talk to your physician for more information about DNRs.
A Living Will is commonly included in an Advance Directive for Health Care, an estate planning tool that addresses several end-of-life matters in a single document.
Related post: The Definitive Guide to Advance Directives
Every state has its own form of Advance Directive.
In Oklahoma, an Advance Directive has three parts: (1) a Living Will, (2) appointment of a Health Care Proxy, and (3) anatomical gifts (i.e., organ donation).
The issues in an Living Will or Advance Directive can be difficult to consider.
I usually recommend talking with your family and your physician (as well as your attorney) about Advance Directives or Living Wills before filling one out.
Contrary to a Last Will and Testament, a Living Will is effective as soon as you sign it.
However, you can change your Living Will or Advance Directive at any time (as long as you are competent to do so).
Should I Have a Will or Living Will?
If you’ve been reading, then you know this is a trick question.
You don’t have to choose.
In fact, I generally believe that most people should have both documents, or at least something like them.
Remember, a good estate plan should address two main areas:
An estate plan ensures (1) that the right people are able to care for your SELF in the event you become incapacitated and (2) that the right people are able to get your STUFF in the event of your death.
A Last Will and Testament only takes care of your stuff (your assets).
A Living Will only takes care of your self (your health care).
Having either one of these documents is good — it’s better than nothing! But having both (or otherwise addressing both sides of estate planning) is better.
Even if you don’t really care who gets your estate or whether you stay connected to life support, having these documents can minimize the risk of family fighting.
Remember the Terri Schiavo case from the early 2000s?
Schiavo had been in a permanent vegetative state for nearly a decade, kept on life support even though she had permanent brain damage and no chance of recovery.
Her husband argued that she would not want her life extended by artificial means.
Her parents believed otherwise.
However, there was no legal document expressing Schiavo’s wishes. So the husband and parents proceeded to fight in court for years and years.
The case reached a dramatic conclusion when Schiavo died in 2005.
Everyone was arguing over what Schiavo would have wanted, but what if she could have told them what she wanted?
A Living Will (or Advance Directive) might have avoided the dispute entirely.
The same idea applies to Wills: having a document stating who gets your assets is often the best way to avoid problems for your loved ones after your death.
You can go even further and avoid court entirely with a Living Trust.
Related post: 8 Reasons You Should Have a Living Trust
Although there are other great estate planning documents (e.g., Living Trust, Durable Power of Attorney), a Last Will and Testament and a Living Will are a great place to start.
Consider a Will and Living Will for Your Estate Plan
Although it is often wise to include both a Will and a Living Will in an estate plan, consult with an estate planning attorney about your particular circumstances before making any decisions.
To learn about what estate planning documents may work best for you, or to update your existing estate plan, call the experienced Oklahoma City estate planning attorneys at Postic & Bates for a free, no-obligation consultation.
David M. Postic is an attorney at Postic & Bates, P.C. His practice focuses on estate planning, probate, real estate, trust administration, business planning, and adoption.
You can email David through our Contact Us page or by calling our office at (405) 691-5080.
[As with all our blog posts and other publications and resources, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]
