Last Wills vs. Living Wills

Although they are both essential estate documents with similar names, last wills and living wills serve entirely different purposes. As such, it's important to think of these documents as two distinct parts of a comprehensive estate plan. This guide will explore the form and function of each of these documents, highlighting their differences and discussing when each document would be most useful.

What is the Difference Between a Last Will and a Living Will?

Simply put, a last will and testament, also known as a last will or, more simply, a will, is a legal document that sets forth your instructions for how your estate (money in bank accounts, assets in investment accounts, cars, jewelry, real estate property, etc.) will be distributed to the people you choose after you die. A will can dictate how much and the type of assets from the estate each person will receive to minimize family and friend squabbles after your death. You can also use a will to name a guardian for your minor children, as well as naming the person responsible for distributing and maintaining your property. A last will is only executed after your death. A last will can be changed or revoked any time prior to your death by using a Codicil to Last Will and Testament.

A living will, also known as an advance healthcare directive, on the other hand, is a legal document that details the medical directions and healthcare measures that will be taken or avoided when you are alive but seriously ill or incapacitated in a position where you are no longer able to make healthcare decisions for yourself or communicate those decisions. A living will often deals with matters such as feeding and breathing tubes as well as the use of life support and life-sustaining medical treatments. A living will becomes effective when you become incapable of communicating medical decisions and are in a specific medical state specified by state law and authorized by a physician. A living will can also be used to appoint a healthcare agent who is responsible for making medical decisions on your behalf when you no longer have the capacity to do so yourself. A living will can be changed or revoked at any time that you are still competent and capable of doing so.

The main difference between living wills and last wills is in their function. While a last will directs the distribution of assets after your death, a living will directs the care of your physical and mental health while you are still alive but unable to communicate your wishes yourself.

Process of Making a Last Will or Living Will

Given that last wills and living wills have different functions, they are each created using specific processes that result in documents capable of holding up to any legal challenges and that meet requirements set out by state law for what each of these documents must contain.

Creating a last will

A last will covers four primary concerns as follows:

1. Naming a personal representative or executor -- In a will, you can name a person or institution to act as a personal representative, also known as an executor, who will be responsible for ensuring that the will is carried out as written and that the property is distributed as directed. It is also wise to name an alternate in case the first choice is unable or unwilling to act.

2. Naming beneficiaries to get specific property -- Your will can specify separate gifts of property, called specific bequests, including cash, personal property, or real estate. Common beneficiaries for such bequests are children, siblings, and other close relatives, but may also include friends, business associates, charities, or other organizations.

3. Naming alternate beneficiaries -- In making a will, most people assume that the beneficiaries they name will survive to take the property they have gifted to them. The most thoughtful wills provide for what should happen if those beneficiaries don't survive and are unable to take the gift, either by naming a backup recipient or indicating that the beneficiary's spouse or children should take the property in their place.

4. Naming someone to take the remaining property -- If you have opted to make specific bequests of property, a will is also the place to name people or organizations to take whatever property is left over. This property is usually called the "residuary estate."

To be deemed valid, a last will must be written in sound judgment, clearly state that it is a will, name an executor, and be signed and dated by you and two or three witnesses (depending on the laws of your state), as well as a notary. For a more in-depth description of the requirements of well-made last will, please see the guide Will Writing 101: Essential Facts and Features in a Valid Will.

Creating a living will

Using a living will, you are able to extend your decision-making abilities concerning your medical care to situations that occur when you are unconscious, not competent to make decisions, or otherwise unable to communicate your wishes. A living will spells out the treatments you would and would not like to use to keep you alive, as well as dictating how long you would like to be kept on life support. They should address a number of possible end-of-life care decisions including the use of of the following:

Cardiopulmonary resuscitation (CPR) -- restarts the heart when it has stopped beating; determine if and when you would want to be resuscitated by CPR or by a device that delivers an electric shock to restart the heart
Mechanical ventilation -- takes over your breathing if you are unable to breathe on your own; consider if, when, and for how long you would want to be placed on a mechanical ventilator
Tube feeding -- supplies the body with nutrients and fluids intravenously or via a stomach tube; decide if, when, and for how long you would want to be fed in this manner
Comfort care (palliative care) -- includes any number of interventions that may be used to keep you comfortable and manage pain while abiding by your other treatment wishes; may include being allowed to die at home, getting pain medication that is addictive or may hasten your death, and avoiding invasive tests or treatments

You may also use your living will to appoint another person, usually known as your healthcare agent, to make healthcare decisions for you if a time should come when you are not able to make them yourself. Your healthcare agent will have the authority to make a wide range of healthcare decisions, such as whether or not you should receive a risky operation, receive certain medications, or be placed on or taken off of life support. The agent, in most states, will also be given access to medical records and given the power to request changes of physicians or other healthcare providers.

Benefits of Creating a Last Will or Living Will

Last wills and living wills are both considered to be indispensable parts of anyone's estate planning process. Both of these documents can provide you and your loved ones the peace of mind that your wishes will be followed, while you are living with a living will and after your death with a last will. In both instances, creating these documents while you are still healthy allows you to consider your options without imminent health concerns weighing on you. You are also better able to discuss your choices ahead of time with your loved ones so they are not left with difficult choices and without your guidance as to your wishes.

Consequences of not having a last will

If you die intestate, or without a last will in place, your property must still be distributed. By not leaving a valid last will, it is essentially left to state law to write your will for you. This doesn't necessarily mean that your property will go to the state. This only happens in very rare cases where a deceased person leaves behind no surviving relatives, even very distant ones. However, it does mean that the state will make certain assumptions about where you would like your money and property to go -- assumptions with which you may not agree. Further, if you have minor children and die without naming a guardian, if the children do not have another legal parent or guardian, one will be selected for them by the Court. This can be a traumatic and lengthy process that may not result in a guardian being selected who you would trust to raise your children in the ways in which you intend or desire. These laws vary significantly state by state. To get a full overview of how the laws in a person's state could play out in a situation where they die without a will, hiring an attorney licensed in that state is worth the investment.

Consequences of not having a living will

In the event that you are incapacitated and unable to communicate your desires without a living a will, doctors or hospitals may decide they are legally obligated to perform certain procedures that you would otherwise not desire. Doctors may decide to place you on ventilators, feeding tubes, and other life-sustaining procedures that may keep you alive indefinitely even if you are in a coma from which they do not expect you to emerge. This may result in the loss of your financial assets on medical treatments that may only prolong the process of your death without any hope that you will eventually recover. If your spouse, adult child, or other next of kin is called upon to make decisions about your care, they will certainly be placed in a stressful and overwhelming position of having to make those decisions without your guidance and instruction about your wishes in these circumstances.

Final Takeaways

Though both last wills and living wills are important estate documents that communicate your wishes when you are no longer able to speak for yourself, they have different purposes and functions that are important to acknowledge when creating your estate plan.

A last will is used to communicate your wishes when you die about how you would like to divide your estate

Your will names an executor to ensure that your last will is carried out properly and your property is distributed as you intend
You can also use your will to name guardians for any minor children you may have as well as creating trusts for assets you would like to pass along before they are old enough to manage those assets themselves
A last will only goes into effect after your death

A living will is used to communicate your wishes about what medical procedures you would like to receive when you are still alive but incapacitated, incompetent, or otherwise no longer able to make your wishes known

A living will includes information about whether you want to be resuscitated and what treatments you would and would not like to receive should you become comatose or in a permanent vegetative state
Your living will may also name a healthcare agent responsible for communicating your medical wishes to your doctors and medical team, as well as making decisions about the care you will or will not receive
A living will goes into effect while you are still alive

About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.