When it comes to estate planning, two of the most commonly discussed documents are a will and a living will. Both are important tools in ensuring that your wishes are respected and your assets are distributed according to your desires. However, despite their similarities, there are some key differences between a will and a living will that are important to understand.
Defining Will & Living Will
A will is a legally binding document that outlines how an individual’s assets will be distributed after their death. It’s used to name beneficiaries, appoint an executor to manage estate of assets, and provide instructions for any other end-of-life decisions. A will is an important part of estate planning because it ensures that your assets are distributed according to your wishes, rather than being subject to the laws of intestacy.
On the other hand, a living will (also known as an advance directive or directive to physicians) is a document that outlines end-of-life medical decisions. They often include instructions such as whether or not you wish to be placed on life support in the event of a terminal or irreversible illness or injury. A living will can also include other directives like naming a power of attorney for medical decisions, and providing instructions for organ donation.
As previously discussed in our estate planning articles, a living will only takes effect when you are incapable of making medical decisions for yourself. This allows for flexibility, as you can modify your living will as long as you have the capacity to make decisions.
One of the key differences between a will and a living will is that a will is only effective after your death and after the will has been probated, while a living will takes effect during your lifetime. A will is used to distribute your assets, while a living will provides instructions for medical treatment in the event that you are unable to make decisions for yourself.
Another difference between the two documents is that a will requires the involvement of a probate court, while a living will does not. When your pass away, your will must be admitted to probate in order for your assets to be distributed according to your wishes. This can be a time-consuming and expensive process, but it’s necessary to ensure that the will is legally binding. On the other hand, a living will is not subject to probate and can be used immediately if you are unable to make your own medical decisions.
While a will and a living will both serve important roles in estate planning, they are different documents with distinct purposes. A will is used to distribute your assets and provide instructions for end-of-life decisions after your death, while a living will provides instructions for medical treatment in the event you are unable to make decisions for yourself. Understanding the differences between these two documents can help you make informed decisions about your estate planning needs.
What You Need to Think About
When creating a will, it’s important to consider who will be named as beneficiaries, who will be appointed as executor, and any other instructions you want to be included. In Texas, a will must also be signed by the testator (the person creating the will) and two witnesses, and it must be in writing. Additionally, the testator must have the mental capacity to understand the consequences of creating a will and must not be under duress or undue influence.
In terms of beneficiaries, the testator can name anyone they choose. However, there are special considerations that must be made if any of your beneficiaries are minors (under the age of 18 in Texas). This can include family members, friends, organizations, or even pets. The testator can also choose to leave specific assets to specific individuals, or they can opt for a more general distribution plan. Be warned, though, if the testator does not name a beneficiary, their assets will be distributed according to the laws of intestacy.
When it comes to carrying out the final wishes of a person who has passed away, the executor of the will plays a crucial role. This person is tasked with making sure the instructions in the will are followed and that all assets are distributed accordingly.
The testator gets to choose anyone they trust to be their executor, but it’s important to pick someone who is reliable, trustworthy, and up to the task at hand. The executor is also in charge of paying any debts and taxes, and making sure that the testator’s wishes are honored according to the terms outlined in the will.
So, in short, the executor is the person responsible for making sure everything goes according to plan and that the testator’s final wishes are respected.
In addition to naming beneficiaries and an executor, a will can also include other instructions for end-of-life decisions. For example, the testator can include instructions for their funeral or other memorial services, or they can choose to make gifts to charity. The testator can also provide specific instructions for the distribution of any assets that may be subject to probate, such as real estate or investment accounts.
While a will provides a clear plan for the distribution of assets and end-of-life decisions, it does not provide any instructions for medical treatment. For this reason, it’s also important to create a living will in addition to a will.
A living will is a document that provides instructions for medical treatment in the event that an individual is unable to make their own medical decisions. This can include instructions for life-sustaining treatment, such as whether or not the individual wishes to be placed on life support, as well as other directives, such as naming a power of attorney for health care decisions and providing instructions for organ donation.
Creating a living will in Texas is a straightforward process. To make it official, the person it concerns must sign the document and have two witnesses sign it too. It must also be in writing. Unlike a will, there’s no need to go through the probate court to make a living will effective. As soon as the individual becomes unable to make their own medical decisions, the living will takes effect.
And if the person’s situation changes, they can change their living will any time they want as long as they have the capacity to make decisions for themselves. It’s that simple! So, whether you’re looking to plan for the future or make sure your wishes are respected, a living will is a useful tool to have in your estate planning arsenal.
A will and a living will are two important estate planning tools that provide individuals with control over their assets and end-of-life decisions. A will provides a plan for the distribution of assets and end-of-life decisions after death, while a living will provides instructions for medical treatment in the event that an individual is unable to make their own medical decisions. By creating both a will and a living will, individuals can ensure that their wishes are respected and their assets are distributed according to their desires.
Choosing the Right Representatives for You
One of the important things to think about is who you want to appoint as your power of attorney. This person will be responsible for making decisions on your behalf, whether it be financial or medical.
In Texas, you can use a power of attorney for financial decisions to handle financial and business matters if you’re unable to make decisions for yourself. This could include making investment choices, paying bills, managing bank accounts, and making decisions about real estate. You have the option of granting this power of attorney on a temporary or permanent basis, and you can revoke it at any time as long as you’re capable of making decisions for yourself.
On the other hand, a power of attorney for health care decisions appoints someone to be in charge of making medical decisions for you if you’re unable to make them yourself. This could include life-sustaining treatment choices, end-of-life care, and other medical decisions. In Texas, this power of attorney must be in writing and must be signed by you and two witnesses.
When choosing your power of attorney, it’s important to be thoughtful about who you pick. This person will have a big responsibility in making decisions on your behalf, so it’s important that they’re trustworthy, responsible, and capable of making tough decisions. It’s also important to have a conversation with your power of attorney so they understand their role and your wishes.
Another important thing to consider is who you want to appoint as the guardian for yourself and your minor children. In the event that both parents pass away, a guardian will be responsible for taking care of the children and making decisions for them. You can name a guardian in your will, in a separate document, or the court will appoint one if you don’t.
It’s also crucial to keep your will and living will up to date, as your circumstances may change over time. For instance, if you get married, have children, or experience a significant change in your finances, you should update your will to reflect those changes. And if your medical treatment preferences change, make sure to update your living will accordingly.
Choosing the right power of attorney and guardian for yourself and your minor children is a critical part of estate planning. By carefully considering who you appoint, you can make sure your wishes are respected and that your assets and care are managed the way you want. And don’t forget to regularly review and update your will and living will as needed.
Writing Your Will and Living Will
If you’re thinking about putting together an estate plan, it’s a smart move to get some professional help. Working with a skilled estate planning attorney can be incredibly beneficial in many ways. For starters, they can guide you through the whole process and make sure that your will and living will are in line with Texas laws.
When you’re looking for an estate planning attorney, it’s important to pick someone with a strong reputation and a wealth of knowledge and experience.
A good estate planning attorney can also help you think about the tax implications of your estate plan. And, if you have concerns about long-term care, they can help you figure out the best way to protect your assets and ensure you’re taken care of.
One of the most important things about working with an estate planning attorney is that they can help make sure your will and living will are legally binding and enforceable. This way, your wishes will be respected even after you’re gone, and your assets will be distributed according to your desires.
In the end, a will and a living will are an important part of estate planning and can help make sure your wishes are followed and your assets and care are taken care of in the way you want. By working with an estate planning attorney, you can have peace of mind that your documents are legally sound and that your estate plan is tailored to meet your unique needs and goals. Whether you’re looking to plan for the future, minimize taxes, or protect your assets, call the experienced attorneys at Hunter Sargent, PLLC today to learn more about your options.