When people pass away, they use a will to confer their assets and belongings to friends and family members. But there are two different kinds of will: a living will, and a last will and testament. Both documents communicate information that the person cannot, but they differ in the agent, the time they take to take effect, and their purpose. 

What's the Difference Between a Living Will and a Last will?

A living will and testament is created to guide decisions about things like life support and organ donation, in the event that the person is severely injured or ill, and cannot communicate their wishes. A last will and testament specifies a person’s last wishes, and designates someone to carry them out after death. A living will is for healthcare decisions near the time of death, while a last will and testament are for determining what happens to your assets after death.

Living Wills: Making Decisions for Your Own Healthcare

A living will, also known as an advanced directive, is designed to dictate healthcare decisions that you won’t be able to make on your own. The use of living wills is a relatively recent development, as advancements in medical technology have prolonged the process of dying. The palliative care process can become emotionally draining for families, and painful and expensive for the dying person.

Over 1.4 million Americans survive only through feeding tubes. Aggressive medical interventions that circumvent death can leave people confined to a nursing home, or in a vegetative state. And yet, studies report that anywhere from 70-95% of people would rather end their lives than have them artificially prolonged in a state with a poor prognosis.

Making these kinds of end of life decisions is challenging for patients, their families, and their attending physicians. A living will gives you the opportunity to make decisions ahead of time, giving medical professionals and your family guidance when you’re near death. In 1991, the United States put the Patient Self-Determination Act (PSDA) into effect. This requires healthcare providers to inform patients of their right to create a living will in accordance with state laws.

Living wills give specific directions about the course of treatment. It can forbid the use of certain treatments that may be expensive and burdensome, such as keeping you artificially alive on life support. It can also dictate specifics like analgesia, antibiotics, hydration, feeding, and resuscitation.

A living will is a tool to help you manage the end of your life the way you want to, rather than relying on others to make decisions for you when you can’t do so for yourself. Having a living will can help you avoid excessively prolonging end of life care, empowering you to die with dignity on your own terms.

A Last Will & Testament: Allocating Assets After Death

While a living will dictates your wishes for the end of your life, a last will and testament comes into effect after you’re already gone. In a last will, you are the testator, expressing your wishes about how your property will be distributed after your death. You name one or more persons as executors, who will manage your estate until it is distributed according to your wishes.

To create a last will and testament, you will need to meet requirements. They vary according to your jurisdiction, but the following are standard:

  • The testator must identify themselves as the maker of the will.

  • You must declare that you revoke any previous wills and codicils. If you do not, and you have a previous will, the new one will overtake the old one only in areas where there are inconsistencies.

  • You must demonstrate that you are of sound mind.

  • You must sign and date the will, in the presence of at least two witnesses who will not be beneficiaries of your estate.

  • Your signature must be placed at the end of the will.

  • You must clearly specify one or more beneficiaries in the text.

Although it isn’t legally required that you consult with a lawyer to create your will, it’s advisable to do so. An estate lawyer can help you ensure that there are no technical problems with your will, and that it is in keeping with your local community property jurisdiction. For example, in some areas, you are not allowed to disinherit a surviving spouse. In Louisiana, you cannot completely exclude any of your children.

Drafting Your Living Will and Last Will

It’s a good idea to create both a living will and a last will, even if you don’t plan on dying anytime soon. In the event of an accident or illness, you’ll want to make sure your last wishes are carried out -- both during your palliative care, and after your death.

Contact Rogers & Moss for your free, no-risk, consultation.