A will is a declaration of how you want your assets distributed following your death. A statutory will is a simple type of will legally recognized by only a handful of states. A living will provides directions for carrying out your wishes regarding your health care if you become incapacitated and cannot make decisions for yourself. A regular will and a living will can work together as part of an overall estate plan.
Essential Elements of a Will
Although wills are often complex documents, there are very few elements that are essential to a will. A will must generally be in writing; only a handful of states accept oral wills, and only under strict requirements. However, several states accept a handwritten, or holographic will as valid under certain circumstances. In general, a will must contain a statement that the person drafting the will is of sound mental capacity and that the document represents her wishes concerning the distribution of her estate after her death. The will must be executed in the presence of competent adult witnesses; many states require two witnesses, although some states require three. The person drafting the will must also sign the will.
Statutory Will Definition
A statutory will is a simple, standardized document that often includes fill-in blanks and check-mark boxes for information such as the name of the person drafting the will, the names of beneficiaries, the name of the executor or personal representative, and the amounts of any bequests, or gifts made to beneficiaries. There are also spaces toward the bottom of the document for the names, addresses and signatures of witnesses, as well as for the signature of the person drafting the will. Some statutory wills include sections for gifts to charities. While statutory wills are fine for small estates and emergencies, they don't work well for blended families or complex estates. In addition, as of 2011, only California, Maine, Michigan, New Mexico and Wisconsin recognized statutory wills as valid.
Living Will Definition
A living will does not involve instructions for the transfer of property. However, living wills do provide instructions for medical care in the event that the person drafting the document becomes incapacitated. Provisions commonly included in living wills include whether to administer or withhold artificial respiration or resuscitation in cases where there is little or no chance of recovery. To be valid, the person drafting a living will must be an adult over age 18 and of sound mind. States vary in additional specific requirements. As early as 1995, 47 states recognized the legality of living wills. However, a living will is only effective if the healthcare provider has a copy, and if the document is registered. It's also wise for the person drafting the living will to carry a pocket card stating that a living will is on file.
Durable Power of Attorney
Many people draft a durable power of attorney for health care along with drafting a living will. This is because a living will does not include provisions for a health care proxy, or person designated to make health care decisions for the incapacitated individual. Like living wills, durable power of attorney documents enjoy broad acceptance across the United States.
- Free Advice: Statutory Will
- Calbar.ca.gov: California Statutory Will California Probate Code, Section 6240
- Michigan Legal Aid.org: Statutory Will
- Justia U.S. Law: 2011 New Mexico Statutes Chapter 45 -- Uniform Probate Code Article 2A -- Uniform Statutory Will Act, 45-2A-1 through 45-2A-17
- MayoClinic.com: Living Wills and Advance Directives for Medical Decisions
- HG.org Global Legal Resources: Estate Planning - Advance Medical Directives
- U.S. Living Will Registry: How It Works
- St. Olaf College: Living Wills
- The Free Legal Dictionary: Will
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