Will vs. Living Will?

What’s the difference and why we all need both.

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What is the difference between a will and a living will? 

While they sound similar, they are very different legal instruments serving different purposes.  Although substantively different, an overly simplified way to distinguish between these two is to remember that a “Living Will” only applies when you are alive, and a “Will” will only take effect once you are deceased.

What is a Will?

 A will is a legal instrument through which you specify the distribution and management of your personal property and assets upon your death.  A will should indicate who you would like to manage your estate upon your death (i.e. person responsible for closing accounts, filing taxes, distributing property, etc. a/k/a the “executor”).  It will also indicate who should receive your assets upon your passing (a “beneficiary”), and in event that person has predeceased you, an alternate beneficiary.  A will can simply address these topics, or it may be more elaborate in terms of specifying the powers of your executor, adding conditions to the receipt of property, establishing trusts and more. 

Even if you think you do not have enough assets to justify having a will, owning any amount of property that will need to be disposed of upon your death justifies having a plan and will in place.  You may also not like what will happen if you don’t make these decisions now- in the absence of a valid will, the law will dictate who will oversee your estate and who will take your property, and it may not be people you like.   

 What is a living will? 

It is not a will at all.  In fact, a living will is a healthcare power of attorney that is in effect while you are alive, but unable to temporarily and/or permanently understand, make or communicate your own healthcare decisions.  A living will specifies who will be in charge to make and communicate important healthcare decisions (a/k/a the “agent” or “healthcare power of attorney”).  It should also indicate your preferences regarding medical treatment and decisions.  For example, what are your goals in the event of an end-stage medical condition?  In the event of severe brain damage or brain disease, do you want extraordinary measures such as continued life support, mechanical ventilation, feeding tubes, etc.? You can also specify your preferences with respect to organ donation.  A living will allows you to make these decisions in advance, at a time when you can thoughtfully contemplate them.

These are not exactly fun things to think about, but they are common to everyone.  Having a will and living will in place can provide you peace of mind, as well as clarity and direction to your family and loved ones. 

Many online websites allow you to prepare these documents using fillable forms, but working with a licensed estate planning attorney in your area is the best way to ensure that you will have thorough documents that address all issues and be properly executed in accordance with the rules of your state or country.