A will is a document that specifies how an individual's property and assets should be distributed after their death. In contrast, a living will or advance healthcare directive contains instructions for medical treatments in the event of the person becoming incapacitated. Both will and living wills are binding legal documents but there is a big difference in how private they are — when the person dies and the will is executed, it goes through probate so wills become a matter of public record. But living wills stay private and are only seen by the medical staff in charge of caring for the person.
What's the Difference Between a Will and a Living Will?
A will is sometimes also called the last will and testament is a legal document that specifies how a person's estate should be handled after that person's death. For example, whether their property and assets will be inherited by all children equally, or by certain children or relatives, or donated to charity. A will only gets executed after the person is deceased.
A living will, on the other hand, determines healthcare measures that will be taken or avoided when the person is alive but in a position where they are unable to take healthcare decisions for themselves or to communicate those decisions; for example, if they are in a coma.
How to Make a Will
The requirements for a living will vary between states, and so they should be prepared by a lawyer. In the will, an individual indicates which treatments they do or do not want applied in the event of a terminal illness or a permanent vegetative state. Before they become effective, they need certification from both your doctor and another doctor that you are suffering from a terminal illness or are permanently unconscious.
How to Make a Living Will
Living wills can only be created by individuals who are over 18 and considered of “sound mind.” The documents must be signed by you or your proxy, and may need a witness or a notary public present. Once it is prepared, a copy should be given to your doctor to go in your medical file.
People may prefer to get legal advice to set up a will, but it is not always necessary. A valid will must be written in sound judgment, clearly state it is the individual’s will, name an executor, and be signed in front of two witnesses.
As living wills are medical documents, they remain private. Wills go through probate, and so become public documents.
The cost of setting up a living will varies from state to state, depending on whether it must be witnessed by a notary. Costs typically fall between $250-$500 to hire a lawyer to draft the living will, while forms can be self-completed for between $45 and $75.
Wills also cost about $200 to $400 to be written up, but the probate process can be expensive, as many probate lawyers charge by the hour, and it can be an extensive process.
What happens if there is no living will?
If a person goes into a vegetative state without a living will, decisions about their treatment and life-prolonging care will be made by their spouse or by the doctors.
What happens if you die without a will?
If a person dies without a will, their property is distributed by the state. Assets are split between the surviving spouse and all children. If there is no living spouse or children, the property is distributed to grandchildren, parents, brothers and sisters, grandparents, or any relatives of your deceased spouse. If no such people are found, the property is assigned to the state of legal residence.
Examples and Templates
Forms for Living Wills
A living will should designate a health care agent, who will help organize your medical care if you are unable to do so. It should also say what treatments you might wish or not wish. For example, do you only want treatment if a cure is possible? Di you want palliative care to ease pain and discomfort while terminally ill? You should also specify whether you would want to resuscitated if your heart stops beating, if you want mechanical ventilation, and if and how long you would want nutritional and hydration assistance. You can also say if you wish to be an organ donor. These things should be written down, and may need to be signed by a notary. Copies must go to your doctor, your health care agent, and your family members. Templates for living wills are available at CaringInfo.org.
Templates for a Will
The formats of wills vary from state to state, but they typically contain certain core information, and must be signed by two witnesses in your presence. A will must have your name and address and a statement revoking any previous wills. It must name an executor to deal with your estate, along with their names and addresses, and a residuary clause, which sets out how property not dealt with in the will should be distributed. It should be dated and signed. Will templates are available at US Legal Forms.com