What’s the Difference Between a Last Will and Living Will?

How Does a Last Will Work?

The person who signs the last will is called the testator. In a last will, the testator nominates an executor, the person who will be responsible for handling your estate after death. The last will also states what assets you would like to have distributed to certain people, charities, or other entities, known as beneficiaries. An executor does not have the authority to collect or distribute assets until the last will is probated by the Surrogate’s Court in the county in which the testator was a resident at the time of his or her death.

For parents with young children, a last will can also allow testators to name a guardian for minor children. If there are beneficiaries that are minors or incapacitated, it can provide that the assets be distributed into trusts on behalf of those beneficiaries.

How Does a Living Will Work?

A living will allows you to leave written instructions that explain your health care preferences if you are determined to have a terminal illness or are at the end of your life and you are not able to communicate your wishes. This document only becomes effective when you are unable to make your own decisions, and it is believed that you are in an irreversible state with no reasonable expectation of recovery.

Living Will vs. Health Care Proxy

In contrast to the living will is a health care proxy, in which you name an agent to make medical decisions on your behalf if you are unable to do so. Most living wills refer to the “agent” to withhold or withdraw treatment, this can refer back to the agent named in a health care proxy. The living will should be used by your health care agent as a guide to carry out the wishes.

Examples of Living Will Directives

A living will can address whether or not you wish to receive the following treatments:

• Cardiopulmonary resuscitation (CPR)
• Mechanical ventilation
• Tube feeding
• Comfort care (palliative care)
• Organ and tissue donations
• Donating your body for scientific study

Key Takeaways on Last Wills and Living Wills

A last will and testament is meant to respect your wishes in the time after your death, while a living will is used to honor your wishes in the last moments of your life. It is wise to inform those close to you what your wishes are for the last moments of your life and thereafter once you pass away. Clarity to your named agent or executor is the best way to ensure your wishes are carried out.