What Is The Difference Between A Will And A Living Will?

After amassing a vast estate during your professional career, it is understandable to be concerned about how your financial and real property will be organized and distributed once you pass on. In North Carolina, you can choose to write a will or a living will. But what’s the difference between the two? This article provides valuable insights into a will and a living trust, so you can make an informed decision when implementing your estate planning strategies.

Will vs. Living Will

Also referred to as the last will and testament, a will is a critical document outlining how your estate (financial, personal, and real property) will be distributed after you die. A North Carolina will enable the testator – the individual writing the will – to ensure their spouse, children, and other loved ones (including pets) are well cared for after they are gone. It also gives them the right to leave the property, assets, and other gifts to nonprofits or charitable organizations.

On the flip side, a living will – also known as an advance healthcare directive – details the instructions to be followed should the testator be incapacitated to make the best decisions regarding their health and medical care. An example of a living will is the “Advance Directive for a Desire for a Natural Death,” which is a document you direct to your healthcare provider on whether to put you on life support or not during your last moments. Under North Carolina law, a living will takes effect during an individual’s lifetime, but a will doesn’t take effect unless the testator has passed on.

While both are legally binding documents, there’s a distinct factor between a will and a living will. When an individual dies and a will is executed, it usually goes through the probate process. That compromises the family’s privacy and confidentiality because the document is recorded in public records. However, a living will is a private document only seen and read by the health agency or medical professionals caring for the individual.

Do I Need a Will in North Carolina?

While no one is legally mandated to write a last will and testament, it’s advisable to write it because, without it, the probate court will determine the distribution of your estate based on the laws of intestacy. The downside is that the outcome under intestacy laws may not align with the wishes and desires of the decedent.

An advantage of writing a will is that you have the right to name an estate representative known as an estate administrator or executor. They are usually a family member or an attorney they trust to undertake their wishes as detailed in the will. Without a will, the probate court will decide who gets what. Even if you write a will, the probate court must first approve it before the estate administrator executes it.

Besides the testamentary trusts (trusts that offer real property to people), North Carolina law also allows the testator to create a pet trust, which takes care of their animal companion and only terminates after the last surviving animal written in the trust dies.

Do I Need a Living Will?

Although it might be hard to think about the circumstances involved in a living will, it’s a document you can benefit from. There are various medical conditions and treatment options that you can include in a living will to customize it to your specific needs. They include:

  • You develop a medical irreversible or incurable condition or are about to undergo surgery that might lead to life-threatening complications.
  • You lose consciousness, and your healthcare providers, after thorough medical analysis, determine that there’s a high likelihood you’ll regain consciousness.
  • You develop advanced dementia or another mental condition that impacts your cognitive function, and your healthcare providers determine that the condition can’t be reversed.

Suppose you become incapacitated without having a living will; in that case, your medical caregivers will turn to your next of kin (spouse or children) to provide the directive for the healthcare providers to follow. That tasks the family with a difficult decision and can sometimes cause rifts among family members when disputes occur.

Why Hire a Lawyer Writing a Last Will and Testament

If you own a vast estate or complex properties and assets, you may want to hire an attorney to provide reliable legal counsel. A lawyer understands the probate process. Therefore, they know what documents are required and the structure they should be. It takes a significant amount of time to understand intestacy law, prepare the necessary papers, and rectify any mistakes.

Additionally, a lawyer can help you navigate complicated family dynamics when creating a will. Some people might be divorced and have had children with another partner. Whatever your family dynamics, a lawyer can provide the strategies and arrangements that suit your current family while adhering to the law. They can also update your existing documents in case your circumstances change. Contact us today; we’re excited to help you.