Living Will vs. Last Will and Testament

May 15, 2019 |

What do I need and what is the difference between the two?

As estate planning attorneys, we often get email inquiries from new clients that read like this:

“Hi there, I need a living will. I want to make sure my kids go to my parents in case I die, and we have a house that we would want sold. We want to make sure they’re all taken care of in the future. Can you help me draft a simple living will? Thanks!”

The language that surrounds estate planning can be confusing and intimidating. The differences between a “living will” and a “last will and testament” are often unclear. Media coverage and generic discussions about these documents can lead to further confusion, as people often incorrectly reference living wills, or wills.  In this article we will discuss both a living will and a last will and testament, their differences and what those differences mean to you.

A last will and testament, is a single document that deals with the disposition of your property after your death.  In your will, you name an executor, the person who wraps up the affairs of your estate and works with a probate attorney, as well as a trustee, if needed, for any trusts created in the will.  If you have minor children, a guardianship appointment will also be included in your will to name the individuals that you entrust with the care of your children in the event of your death.  Proper execution of a last will and testament is vital to ensure your document is admitted to probate.  In Texas, many individuals elect “independent administration”, meaning that you will trust your executor to manage the details of your estate without court oversight. A will can be a very complex document or it can be relatively straightforward.  The complexity of your estate planning needs can only truly be assessed by an honest discussion of your wishes, your assets and your family dynamics with an experienced estate planning attorney.

A living will, or as it is called in Texas, an “advanced directive to physicians”, does not deal with your property. Rather, a living will deals with your personal wishes in the event you are diagnosed with a terminal or an irreversible condition and cannot make or communicate decisions about your care. An advanced directive gives the agent you have appointed under your medical power of attorney direction on how to handle end of life decisions regarding your desired comfort, continued lifesaving procedures and even specific wishes as to artificial nutrition and hydration.  This legal document can provide your family the comfort of honoring your wishes in the event of a traumatic event or life ending illness.  

While the terms are commonly used interchangeably by many, a living will and last will and testament are indeed very different legal documents.  Here at the Houser Firm, we can help you navigate the often confusing landscape of estate planning, and ensure that your wishes are followed regarding your property and your health care. Contact us today to begin or update your estate plan with an experienced estate planning attorney.

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