Planning your estate may involve creating several documents to address your end-of-life care before you die and your property after you die. Two of these documents may be a will and living will. A will directs the distribution of your assets after you die and a living will directs your health care while you are alive.
A will, sometimes called a last will and testament, is a legal document that explains how the maker of the will -- the testator -- wants his property to be distributed upon his death. The will may also nominate an executor, a person the testator trusts to distribute his property according to the instructions given in his will. If you have minor children, your will can nominate a guardian to care for your children after your death.
Every state has its own laws and requirements for making a valid will. These vary between states, but they generally require the testator to be at least 18 years old and to have testamentary capacity at the time he signs the will. Generally, testamentary capacity means you have the mental ability to fully understand your will and its importance. Many states also require that a will be signed in the presence of competent witnesses who have no interest in the validity of the will; the will may also be notarized. If your will is not valid, or if you die without a will, your property will be distributed according to your state's laws of intestacy, which provide a hierarchy of heirs to receive your property after creditors are paid.
Unlike wills, living wills do not include bequests of property. Instead, living wills direct your physicians and loved ones as they attend to your end-of-life health care. The living will communicates your preferences in medical care if you become incapacitated and cannot communicate your wishes. Living wills often address issues like whether you want life-sustaining medical treatments withheld or administered and commonly include directives about artificial respiration, hydration and nutrition.
Living Will Requirements
The requirements of a living will vary between states, but a living will is generally valid if it is witnessed by two competent witnesses and notarized. Often, the witnesses cannot be physicians involved in your care. If your living will is invalid or you don’t have one, your family usually will make your health care decisions.
- North Carolina State University: Planning Your Estate: Wills
- Texas Constitution and Statutes: Probate Code: Chapter IV
- State Bar of Texas: State Bar Books: Wills Road Map
- Mayo Clinic: Consumer Health: Living Wills and Advance Directives for Medical Decisions
- Goldfarb Abrandt Salzman & Kutzin LLP: Frequently Asked Questions Concerning Living Wills and Health Care Proxies
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