Last Will & Testament vs Living Will: What’s The Difference?

by | Aug 29, 2022 | estate planning, legacy planning

While essential to ensure your last wishes are properly honored, estate planning is often overlooked. Many individuals shy away from the idea of estate planning because the process can be quite complicated. Even though last wills and living wills sometimes get confused for each other, they actually serve different purposes. 

What is a Last Will & Testament?

A last will and testament is often just referred to as a will. It is a legal document that outlines how you would want your property or other assets distributed in the case of your death. Those who would be granted your assets or property are referred to as beneficiaries. So, if you want your belongings to go to someone after your death, you can detail this in your will. But, your will has a few other uses as well. If you have children, you can also designate guardians for your children or dependents. The person who carries out your wishes when it comes to your will is known as your executor and they will have to be named. This person will be responsible for distributing assets, paying debts, and have other responsibilities. 

What Happens if I Die Without a Last Will & Testament?

Dying without a will is referred to as dying “intestate”. If you die intestate, then a local probate court will determine how your property and assets are distributed. Without a legal will, your wishes will remain unknown. While the court will attempt to act in your best interest, they will not know what you would have actually wanted. This can create issues for family members as well. While this time will already be emotionally charged, due to a death, it can also cause increased tension as family members and friends try to determine what they feel they are entitled to. 

How Does Dying Without a Will Affect Loved Ones?

Dying without a will can put your loved ones through additional grief and stress. With a will, you can help to assist your loved ones by:

  • Nominating an executor. The executor is the person responsible for going through the will and managing it as the deceased person sees fit. Oftentimes, the executor will be explicitly named. 
  • Distributing assets and property. In your will, you will be able to name who you would like your items to go to. These people are known as your beneficiaries. 
  • Determining guardians for your children. If you have minor children, you can name who you would like the children to be under the care of. 
  • Determining caretakers for your pets. Since pets are considered property, you can determine who you would like to take care of your pets in the event of your passing. 

Without a will, your loved ones may not get much of a say in what goes to go or what happens to your personal belongings. They may also have disagreements and create familial tension during the process, as multiple people may feel entitled to the same assets. 

What is Probate?

Even if you have a will, you may still have to go through probate court. Probate is the process of distributing your assets after your death under court supervision. If you have a will, this process is generally much more streamlined. Dying without a will causes the process to start with naming the administrator for your estate. Typically, this will go to a surviving spouse or adult child. Until an individual is determined, your assets will remain held. Local laws will determine the distribution of your estate. However, if you have a large estate, this could become complicated quickly without a living will and testament. 

What is a Living Will? 

A living will, also known as an advanced health care directive, is a legal document that allows you to outline your healthcare wishes in the event that you are incapacitated and not able to make decisions for yourself. This might include the use of feeding tubes, breathing tubes, blood transfusions, or pain medications. In determining what you would like for your living will, it is important for you to consider your own unique values. There are certain questions that you may want to ask yourself and certain situations that you will want to explore the possibility of happening. For instance, consider end-of-life care decisions, or dementia treatment provisions, as part of your living will. Speaking with your doctor can also help you make sure you are not missing any potential situations that may affect you. 

Reviewing and Changing a Living Will

You can review and change your living will at any time. You can discuss changes with your friends, family, caregivers, healthcare team, as well as your legal advisor. When you experience some of these situations, you may want to consider reviewing or changing your living will.

  • New diagnosis. Diagnosis of a disease or condition that will be severely impeding your life may cause you to review our living will. Discussing your different options with your doctor can help you understand what care you will receive with this new diagnosis, the course of the condition or disease, and what your treatment options look like. 
  • Change in marital status. Whether you have recently married, divorced, or separated, you may want to review your living will. This is because you may want to decide on a new person that will be able to make medical decisions on your behalf.  

Do I Need a Last Will and a Living Will?

While you don’t necessarily need to have either a last will or a living will, it is typically strongly recommended to have both. What is included in your documents will depend on your own individual situations and needs. Speaking with a professional estate planning attorney can help you assess your own unique circumstances. 

Speak with a Professional Estate & Trust Planning Attorney in California

Last wills and living wills are very different from each other. While this short guide may have helped you understand the difference, there are many intricacies that go into estate planning. At Galanti & Copenhaver, we dive deep into an individual’s unique situations and circumstances to help them design a plan that works for their needs. 

Give our experienced team a call today to set up your initial consultation for your estate planning needs!

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