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What is the difference between wills and living wills?

Garland, TX |

I am a single Mom. My daughter is my only family. Do I need a living will as well as a regular will.

Attorney Answers 4

  1. A Last Will and Testament (or Will) is a document that provides for the disposition of your estate through probate court, following your death. A Living Will is a document which describes the kind of medical treatment you would want if suffering from a terminal condition and unable to express your wishes. A Revocable (or Living) Trust is a substitute for a Will that provides for the management of your assets while alive, the disposition of your assets following death, and also avoids the need for probate.

    All of these documents are best prepared by a qualified estate planning attorney.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

  2. I agree with Mr. Frederick. The two documents serve different purposes. Your Will controls a number of things after you pass away: Who inherits your property? Who should administer your estate during the probate process? How should your debts be paid upon your death?

    A Living Will is used while you are alive, but incapacitated and unable to communicate your wishes as to the kinds of medical treatments you would agree to have performed. Depending on your state, a Living Will (or advance directive) may not even be legally binding (it's not in MA, for example). However, it should serve as powerful evidence of your wishes for those making medical decisions for you. That said, it is also advisable to create and sign a medical power of attorney, naming someone you trust as your healthcare agent with the power to make those difficult medical decisions for you if you are unable.

    You should consult with an estate planning attorney in your area to ensure that your estate plan matches your specific goals and needs.

    Hope this helps.

    This answer is in response to a general legal question and is intended for informational purposes only. It does not constitute legal advice. Use of this website and its e-mail link does not create an attorney-client relationship with Attorney Mekdsy. Messages with confidential information should not be sent to Attorney Mekdsy via the e-mail link. The information provided in this answer must not be used as a substitute for consulting with an attorney. Brian Mekdsy is licensed to practice law in the Commonwealth of Massachusetts only.

  3. Yes, the documents are very different. The true term for a "living will" is a Directive to Physicians and is a statutory document to declare your intentions in case of final illness, e.g. do you want to be on a ventilator if you are brain dead? As a single Mom, it is critical that you plan. You need a will, a directive, including a medical power of attorney, and a financial power of attorney. These documents may be very straightforward and not expensive to prepare. This is an important thing to do to make sure your daughter is cared for in case you are unable or have passed away.

    There is no legal relationship created or implied by the exchange of message on this website. All statements are not to be construed as legal advice but as general guidance. In all cases, an attorney should be retained to review the full circumstances and deliver advice consistent with the information learned.

  4. Although you do not NEED either document, they will become very helpful to your daughter. The Living Will is also known as the "Declaration of Intent regarding life support". This document allows you to make your decisions now about whether and when you want treatment/nutrition/life support machines used to prolong your life. Your daughter then will not have to guess or get court assistance to remove any of these if you have a valid Living Will appointing her as your agent to carryout your stated wishes on these issues.

    The Will or otherwise know as the Last Will and Testament is also a very helpful document as it does more than name your daughter as a beneficiary. It can provide a waiver of the requirements to buy and post a bond or to file an inventory with a court. It can name her as representative and make it much easier for her to sign your final tax return and also to close accounts and process life insurance policies.

    I strongly recommend you have both documents, and also that your daughter, assuming she is an adult, also have both documents created and signed as soon as possible.

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