The difference between a living will and a last will is a frequent cause of confusion during the estate planning process. Both documents can detail decisions you would want made on your behalf if you were unable to do so, but they are each used at different points in time. SmolenPlevy estate planning attorneys Jason Smolen and Daniel Ruttenberg walk you through the key differences between these essential estate planning documents.
What is the difference between a last will and a living will?
The key difference between a living will and a last will is the timing in which it goes into effect:
- Living Will – as the name suggests, goes into effect while you are still alive and is directed towards healthcare decisions.
- Last Will – goes into effect after you have passed away and is directed towards property and guardianship.
What does a living will do?
A living will outlines medical decisions you would want made for you if you were ever unable to speak for yourself. “For example, if you fall into a coma and need life-saving efforts, your doctors and loved ones will look to your living will in order to decide whether or not to initiate further medical treatment,” explains Principal Jason Smolen. The term living will falls under the greater umbrella of medical documents called advance directives. Advance directives are essentially roadmaps for your doctors and family members when it comes to making significant medical decisions when you are unable to make them yourself.
What does a last will do?
The main purpose of a last will is to detail how your assets will be distributed and to appoint guardianship to any minor children or adults you had guardianship over. Typically, an executor is also named in a last will. Their job is to help the court navigate the distribution of the deceased’s assets (possibly into a trust) and also take care of any outstanding debts.
Do I need both a last will and a living will?
It is highly recommended to have both a living will and a last will. Both documents exist to ensure your voice is heard when you cannot make decisions on your own or after you have passed away. “During challenging times, these documents can also relieve significant stress on family members and loved ones by outlining a clear decision making process,” explains Principal Daniel Ruttenberg.
If you have any further questions about the functions of either of these important legal documents, or need assistance mapping out your own, please contact Jason Smolen at jdsmolen@smolenplevy.com or Daniel Ruttenberg at dhruttenberg@smolenplevy.com.
About the Authors
Jason Smolen
Jason Smolen is a founding principal of SmolenPlevy. Smolen’s knowledge of complex estate and business issues has drawn the attention of ABC News, USA Today, E! Online, Realty Times and the Bank of America Small Business Online Community. Mr. Smolen is a graduate of the City College of the City University of New York and the George Mason University School of Law. Smolen also serves as a board member of a local citizens association and recently co-authored an article titled Why You Should Think About Spousal Limited Access Trusts (SLATS).
Daniel H. Ruttenberg
Daniel H. Ruttenberg, JD, CPA, LLM is a principal with the firm. Mr. Ruttenberg received his Bachelor of Science degree with a double major in Accounting and Finance from the University of Maryland. He earned his Juris Doctor with Honors from George Mason University School of Law and his Master of Laws in Taxation with Distinction from Georgetown University Law Center. Mr. Ruttenberg also served as the Director of the Fairfax Bar Association (FBA) for seven years. During this period, he was also elected president – the youngest in FBA history and served as a member of the Board of Directors for the Fairfax Law Foundation.
