The Differences Between a Will and Living Will

When it comes to estate planning, most people tend to think of a last will and testament. However, a living will is an equally important vehicle of transfer that allows you to “leave behind” your final wishes. While it’s common to assume that a living will is simply a variation of a standard will that allows you to transfer property in a different manner, this is a frequent misconception. Below, we provide a brief overview of both a will and a living will, and look at some main differences.

What is a will?

A will, which is also called a last will and testament, is essentially a legal document stating how you want your property and assets to be distributed upon your passing. You can appoint an executor to oversee the process, and also appoint a guardian to care for your minor children. There are different legal requirements per state to ensure that your will is valid (otherwise your property will be divided according to state law after all creditors are paid), which is why hiring an estate planning attorney in Melbourne, FL, is essential.

What is a living will?

A living will does not deal with property at all. Instead, a living will is an advanced health care directive, which states your wishes when it comes to the health care treatments that you would want (or would deny) in the event that you are incapacitated. One common case which was highly publicized helps to demonstrate why a living will is important. From 1990 to 2005, Terri Schiavo was in a persistent vegetative state, kept alive for many years by feeding tubes. Her husband decided that she would have wanted to have them removed, while her parents disagreed, leading to a lengthy battle in court. Had there been a living will in place, much time, heartache, and money could have been saved.

Living wills tend to communicate directives about hydration, nutrition, and whether or not life-sustaining treatments should be withheld at a certain point. You can also state if you wish to be an organ donor or not. It is important to note that a witness cannot be a physician who is involved in your care; if it is invalidated, your immediate family will make decisions on your behalf.

What are other main differences?

There are other factors that differentiate a will from a living will. Time is perhaps the biggest difference, as a will has no legal impact until your passing, while a living will goes into effect while you are still alive (although incapacitated). In both a living will and a will, you can nominate an individual to take action. In a will, an executor is appointed; with a living will, someone can be appointed as your health care agent to carry out directives. A living will is not a public document, unlike a will which must enter probate, making it part of the public record.

To help draft either a will or a living will in Melbourne, FL, contact J. Scott Lanford today for a consultation.

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