Wills and Living Wills: What Are They and Who Needs One?

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You might have a will that expresses your wishes when you die, but what steps would you take if you had a serious accident?

Though it might seem morbid to think about, have you considered what you would do if you were to suffer an incapacitating injury in that accident and were in a coma?

Would you want to be on life support?

What if you were to suffer a cardiac arrest while in that coma – would you want to be resuscitated?

This article will explain the difference between a will and a living will. Though those legal documents share the same word, they are very different.

What Is A Will?

A will is a document that provides a set of instructions about what should happen to their property or other assets after they die.   You can also use a will for

  • Naming an executor
  • Naming guardians for children and their property
  • Deciding how debts and taxes will be paid after your death
  • Providing for the care of beloved pets
  • Creating a backup to a living trust

You Cannot Use A Will for

 

  • Making conditional gifts – for instance, I will give my car to my granddaughter if she finishes college
  • Leaving instructions for final arrangements after your death
  • Leaving property for your pet
  • Make arrangements for money or property in a trust or for which you’ve named a pay-on-death beneficiary

Legal Requirements For Wills

When creating a will there are very few legal requirements.  In a US State, to create a will you must

  • Have knowledge of what property you possess and understand what it means to leave it to someone after you die.  In legal terminology, this is called having “capacity” – in layman’s terms this is also known as being “of sound mind.”
  • Write a document that specifies one or more beneficiaries for at least some of your property
  • Sign the document in the presence of at least two witnesses

There is no requirement for your will to be notarized.  However, using a notarized self-proving affidavit will make your will easier to get through state probate after your death.

There are a few states allow you to make a handwritten “holographic” wills. These wills don’t have to be signed by witnesses.

Handwritten wills should only be used when you do not have time to make a formal will as are much easier to contest after you die.

What Is a Living Will?

A living will is a legal document that details your desires with regard to what medical procedures you want or don't want in the event your health becomes critical and you can't voice your wishes.

For instance, you might be in an irreversible coma or you're suffering from a terminal illness. Or like we described at the start of the article, you might have suffered a severe injury and you're not expected to fully recover. You can no longer express to your caregivers what steps you want to take to preserve – or not to preserve – your life.

A living will is specifically designed to deal with what decisions you want made about life-ending versus life-sustaining procedures.

A living will can also address issues of palliative care and/or organ donation. Having a living will allows you to express your wishes at a time when your life is not yet threatened and you have all of your mental faculties. You can express everything you wish to happen in advance.

You can incorporate a living will into an advance medical directive. An advance medical directive is a legal document that allows you to designate someone else to make health care decisions in the event that you cannot do this for yourself.

The difference between an advance medical directive and a living will is that a living will doesn't name or appoint anyone else to speak for you.

The living will simply states your wishes – it describes under what circumstances you want health care providers to attempt to prolong your life or to cease life-sustaining measures.

Living Wills Versus Wills Summary

A living will details your wishes for medical treatment if you are incapacitated and unable to make decisions or voice them to your caregivers.

A will on the other hand spells out how you want your property and assets distributed to your named beneficiaries.

While most people know how important it is to create a will for when they pass away they give little thought to what should be done in the event that they become incapacitated due to illness or injury.

Consider having a living will so that your wishes regarding medical care or non-resuscitation are followed.

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