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Understanding the Difference Between A Will and A Living Will

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Wills have evolved considerably over the years. What once started as simple instructions to distribute one’s assets after death has spawned multiple different documents related to estate planning. Do you know their differences and which one is right for you?

Living wills and Last Wills and Testaments are the two most commonly used documents for estate planning. However, they aren’t interchangeable. Confusing the two could have disastrous consequences, from leaving the state of your assets in question to medical professionals ignoring your directives.

Learning how these two documents work is the first step to taking control of your estate planning. Though probate and estate planning can be complicated subjects, we think you’ll find that distinguishing these two types of wills is very simple once you are armed with the information you need to move forward. 

What is a Last Will and Testament?

A last will and testament is a document that dictates instructions to follow after someone’s death. It’s an essential piece of estate planning for anyone with assets (or debts) to distribute after they die (a house, car, or savings account, for example) or minors who need care. The will writer (or testator) writes and signs the will and assigns a personal representative to handle the instructions of the will once the testator has passed. The will must also be signed by two witnesses and notarized before it can be verified. These are known as “self-proving” wills. 

The probate of your will begins by having it admitted to probate and the court issuing letters testamentary. Your personal representative can then begin to tend to the affairs of the estate such as defending claims of creditors, maintaining assets, and marshalling the estate, to name a few. 

While, ideally, your executor will act on your last wishes without issue, a court will follow the probate process to ensure the will is valid. In essence, probate exists to confirm that the instructions outlined in your will can still be followed at the time of your passing and don’t violate the law. Of course, anyone may challenge the validity of your will during or before the probate process as well. A well-drafted will can avoid, or shorten, many of those concerns.

Having a will is the simplest way to enforce your final wishes legally. Your assets will be distributed following intestacy laws if you pass without a will in place. Though intestacy laws are pretty clear-cut, they are much more cumbersome and expensive for your loved ones.

The original needs to be kept in a safe place where someone can readily produce it when needed. You do not need to keep your will on your person. Our local probate court has a vault which stores wills for a nominal fee. 

What Is A Living Will?

A living will is also knownas an advanced healthcare directive(“AHCD”). A living will outlines what steps you do or do not want to take in a critical medical situation. Medical staff will only follow a living will once they confirm you are incapacitated. 

Living wills most commonly include the efforts you want (or don’t want) medical professionals to take to save your life. It’s essential to have it if you are opposed to specific procedures. A living will can also instruct whether or not you want to donate organs or body parts in the event of your passing. 

Another goal of the living will is to prevent family members from fighting over what decision to make on your behalf. However, you can also specify someone in your living will to make medical decisions on your behalf. Usually, such designations are known as health care power of attorney. 

In Alabama, your living will is valid so long as you’re age 19 or older, the will is in writing, and you’ve signed and dated in the presence of two witnesses. 

In addition to keeping a copy for yourself, you should give a copy of your living will to any medical professionals who regularly treat you. You may want to give it out to members of your family as well. Finally, though not legally necessary, it is a good idea to provide a copy to your lawyer to retain as well. 

How Are They Different?

A simple way to view it is this —  your last will guides people on how to divide your assets and care for your children (if you have any) once you pass. Your living will instructs medical professionals how to treat you in a life-or-death situation when you’re unable to communicate for yourself. The former is only enforceable after your passing, while the latter if only effective when you’re still alive. 

Which one is right for you depends entirely on your needs. However, it’s important to note that it’s not a “one or the other” situation, and having both can help prepare you and your loved ones for the unexpected. An Alabama probate attorney will usually advise you to have both for this very reason.

Let Brackin & Johnson Help Plan For Your Future

While it’s true that you don’t need a lawyer to write up and enforce either type of will, writing it on your own exposes you to huge risks. How can you be sure your will is legally enforceable? Is the language concise enough to remove doubt and prevent legal challenges?

That’s why you need Brackin & Johnson on your side.

While you may not want to think about what will happen when you pass away, you also want to make sure that your family is protected and taken care of. Having a will in place can help ensure that your assets get distributed in the way you want.

The experienced attorneys at Brackin & Johnson have been preparing estate planning documents of all kinds for decades. Whether your estate planning is simple or very complex, we will provide you with the estate planning solutions that you need to protect your family legacy.

Contact us today and let us assist you with all of your estate planning needs.

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