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What’s the Difference between a Will and a Living Will?

Estate planning tools work together to create the legacy you imagined and to effectuate your wishes from a legal standpoint. But it’s important to understand what each tool does and why it’s important, and certainly to clarify confusion regarding similar sounding tools. For example: What’s the Difference Between a Will and a Living Will?

Last Will and Testament

A Will, or Last Will and Testament, is a foundational element of every estate plan, whether simple or complex. A Will is what’s called a “testamentary” document, meaning it takes effect after the creator of the Will passes away. During that person’s lifetime, the provisions of the Will have no impact. They may be used to infer what the creator’s intentions are during life, but from a legal standpoint the Will is effective only at death.

Wills are generally used to do three main, and very important, things:

  1. Nominate a legal Guardian for minor children;
  2. Nominate an Executor (and Testamentary Trustee) to settle your estate; and
  3. Direct the distribution and succession of your probate and real estate assets.

None of these have any impact during the creators lifetime, however. So, to make it even more clear, Wills are only effective upon death.

Living Will (or Advance Directive)

The Living Will (or Advance Directive) is a legal instrument used to make sure your end-of-life wishes are known and followed by your loved ones and your medical care providers

The Living Will allows you to set out, during your lifetime and while you’re still competent and well, your preferences for medical treatment if you are faced with a terminal condition or a persistent vegetative state, and your treating physician(s) believe(s), in their medical opinion, that you are only being sustained by artificial means. By utilizing a Living Will, you are making a legal decision to instruct your treating physicians to withhold or withdraw all life-prolonging measures and to allow you to die naturally.

A Living Will is not a required element of your estate plan, as it’s very much a personal decision. But it can do two, very important things:

  1. Make sure that your wishes are known and followed; and
  2. Make sure that your family members are not the ones who have to make the decision to terminate life-prolonging measures, which can be a great burden.

Author Bio

Paul Yokabitus

Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.

Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.

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