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Estate Planning 101

Nov 10

Someone e-mailed this question recently: “Shane, I am considering having a will prepared, what is the difference between a will and a living will?”

Many people do not know the difference between a will and a living will.  In fact, many people believe that a living will works to distribute a person’s property like a will, but while they are alive.  Although their names are similar, however, a will and a living will are very different estate planning documents.

A will is a document that lists out how you want your property to be distributed when you die.  There are several requirements for a valid will, so you should always have one prepared by a lawyer.  Because of these requirements, simply writing down your wishes without a lawyer’s help is usually not sufficient.  There are very few requirements on how you can distribute your property; you can leave everything to one person, or list out individual items to certain people. 

There are several advantages to having a will.  For one, you not only choose where your property goes, but also who is in control of overseeing or “administering” your estate when you die.  The administrator of your estate is called your “executor.”  The executor is basically in charge of making sure your debts are paid out of your final estate and seeing that your property is distributed properly.  Another advantage is that you can name a caretaker or “guardian” for any young children you may have.  You can also direct that property you leave your children be held by a person of your choosing in what is called a “trust” until your children are a certain age.    

A person’s will must be “probated” after his or her death to be considered valid.  Many people think that a will is valid immediately upon a person’s death; the executor, however, (usually through a lawyer) must file the will at the probate office with the death certificate and other documents.  This procedure is called “offering the will to probate.”  If everything is in order, and no-one contests the will, it is “admitted to probate.”  At this point, the will is considered valid.

A living will, however, has nothing to do with distribution of a person’s property.  A living will lets doctors know your wishes should you become “permanently unconscious” (commonly known as brain-dead) and are only being kept alive by hospital machines.  Usually, a living will instructs the hospital to turn off these machines if two different doctors declare you will no longer be able to think, feel anything, knowingly move, or be aware of being alive.  A living will also usually contains what is called an “advanced health care directive.”  This document gives your consent for a person of your choosing to make medical decisions on your behalf should you be unconscious and not able to make these important decisions for yourself.

            As always, this column is intended for general information purposes only.  It is not intended, nor should it be construed as personal legal advice.  The answers to most legal problems rely on the specific facts of your situation; therefore, it is very important that you personally see a lawyer when these situations arise.