One of the most common estate planning requests I get is to draft a living will. While this is great because everyone needs one, I have found that many people are confusing a living will with another document, such as a will or even a living trust. This post will explain what a living will is and some of the alternatives that people are really looking for.
The term “living will” gets used interchangeably with other names such as an advance health care directive or power of attorney for health care decisions. While each of these documents may offer something slightly different, they all serve the general purpose of allowing an individual to provide instructions on the scenarios in which they want to be kept alive, particularly when they are incapacitated. This is an extremely important document, as it is the only way to ensure that one’s agent knows under what circumstances to sustain or discontinue life support.
A will is much different than a living will, as it has to do with the individual’s disposition of their estate as opposed to health care decisions. In a will, the creator (testator) gives instructions on who they want their assets to go to upon their death, also called the beneficiaries. Without a will in place, one has no say as to who their assets are distributed to or who will be in charge of administrating their estate. Additionally, those with minors can nominate a guardian for their children.
A living trust, also known as a revocable (living) trust, is also much different than a living will or even a will. A living trust is an instrument that provides for management of the creator’s assets during life, while also providing for the distribution upon their death. I have written about living trusts many times, but it’s a great tool for those looking to avoid probate and minimize potential estate taxes.
Although close in name, the documents described above serve very different purposes. It’s best to speak with an estate planning attorney to find out what is the best fit for each individual.
This post is provided for informational purposes only and does not constitute legal advice. It is intended, but not promised or guaranteed to be current, complete, or up-to-date and should in no way be taken as an indication of future results. It is not intended to create an attorney-client relationship and is offered only for general informational and educational purposes. You should not act or rely on any information contained in this website without first seeking the advice of an attorney.