On August 8, 2023 in Estate Planning by Leighton Tyau

Understanding Wills, Living Wills, and the Intricacies of Estate Planning

wills and living wills

Estate planning can be a challenging task. While no one likes to think about end-of-life situations, making these decisions in advance can provide peace of mind and security for your loved ones. Two critical legal documents to consider in your estate planning are a Last Will and Testament and a Living Will.

Last Will and Testament: What Is a Will?

A Last Will and Testament is a legal document that expresses your wishes regarding the distribution of your estate (real estate, personal property, etc.) and nominates guardians for any minor children after your death. The testator, or the person who makes the will, appoints a personal representative, often referred to as an executor, to carry out these wishes.

When you pass away, your Last Will and Testament will be proved (probated) in the probate court. The court then oversees the distribution of your assets to the beneficiaries (devisees) you have designated. If you die without a will, your state’s intestacy law dictates the division of your estate, which can lead to potential issues, which can cause the administration and distribution process to be long, stressful, and costly. A will helps your family members avoid probate fights and protect your estate from being torn apart by infighting.

Living Will (What is a Living Will?)

A Living Will is a legally binding document that communicates your desires regarding medical treatment and end-of-life care, should you become unable to express these wishes yourself. It goes hand in hand with your healthcare power of attorney. Unlike a Last Will and Testament, which takes effect after your death, a Living Will guides your medical treatment while you’re still alive but incapacitated. It allows you to maintain control over your medical decisions, from your stance on life-sustaining treatments like feeding tubes and breathing machines.

This crucial document becomes effective when a medical professional deems you unable to make or communicate your health care decisions, such as if you were to fall into a coma following a severe accident. In such circumstances, your Living Will offers clear instructions to health care providers and loved ones about your preferred medical care.

Almost everyone can benefit from having a Living Will. However, it is particularly crucial for those with strong feelings about specific treatments or those with a terminal illness who want to ensure their end-of-life care wishes are honored. By preparing a Living Will, you provide clarity and guidance during a challenging time, reducing potential conflict among loved ones and ensuring your wishes for your health care are respected.

Living Will vs. Healthcare Directive

While the terms ‘Living Will’ and ‘Healthcare Directive’ are sometimes used interchangeably, they technically refer to two different documents, each with different purposes. A Living Will, as discussed earlier, outlines your preferences regarding medical treatments and procedures in the event that you become incapacitated. It is usually appended to or attached to your Healthcare Power of Attorney.

On the other hand, a Healthcare Directive, also known as a Durable Power of Attorney for Health Care, designates a person (your health care proxy or agent) to make medical decisions on your behalf when you cannot. 

Essentially, a Living Will expresses what you want to have happen in specific situations, while a Healthcare Directive appoints the person who will make decisions on your behalf. They work in tandem to ensure your medical wishes are carried out according to your preferences.

The Role of a Living Will in Health Care Decisions

A Living Will allows you to make difficult decisions about end-of-life care ahead of time. It can specify whether you wish to be kept on life support if you enter a vegetative state or if you would prefer to pass away naturally. You might also stipulate whether you would accept a feeding tube or other life-sustaining treatments.

By detailing your wishes for medical care in advance, you alleviate the burden on your loved ones having to make these medical decisions. It also avoids the Terri Shiavo debacle. Health care providers also appreciate this document as it gives them clear directives about your treatment preferences.

Durable Power of Attorney and Living Trust: Other Estate Planning Tools

In your estate planning, you might also consider a Durable Power of Attorney (POA) and a Living Trust. A Durable Power of Attorney designates an individual to handle your affairs if you become unable to do so. This could cover financial decisions, making it an essential companion to a Living Will and Healthcare Directive.

A Revocable Living Trust allows you to manage your assets during your lifetime and distribute remaining assets after your death without the need for probate. This is a more private process than a will, which becomes public record once it enters probate.

When to Consult an Estate Planning Attorney

Considering the complexity and legal nuances involved in drafting these documents, it’s advisable to seek legal advice from an estate planning attorney or a law firm specializing in this area. Different states have different laws, especially concerning what constitutes a valid will or Living Will. A legal expert will also help you understand the potential impacts of your decisions, ensuring you have comprehensive protection for end-of-life scenarios.

A Living Will and a Last Will and Testament serve different yet essential roles in your life. They protect your interests, provide for loved ones, and guide medical care decisions when you can’t. By including these documents in your estate planning, you offer a significant gift to those you leave behind: clarity and simplicity during a time of grief. And for you, they offer something just as valuable – peace of mind.

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