What is the difference between a "will" and a "living will”?

If you or someone you love is near the end of life, arranging legal paperwork might be one of the last things on your mind. Working with a legal professional to draft a last will and testament is a vital step to protect your loved ones and help them make a decision on how property, assets, and any other elements will be handled after death.

However, it is important to remember that there is a difference in California between a will, and a living will. Both can be easily confused for one another, but they serve different purposes.

An experienced estate-planning lawyer will be able to guide you through the process of creating both documents, and the key differences are below.

What Is A Will?

A will is a legal document that lists out instructions you wish to have carried out after your death. It also gives you the opportunity to list any final wishes or declarations. If you do not have a will, state law will dictate how your affairs and property distribution is handled.

This can cause headaches or lead to days in court for your family, especially if they do not agree with California policies regarding asset dispersal, which is calculated based off of a percentage formula.

California law does offer forms that you can fill out yourself if your estate is small or if you are single, married or divorced, but working with an experienced wills & trust or asset protection lawyer often makes the process easier and provides you with the peace of mind knowing that it has been done right.

A will becomes irrevocable after death, and gives you the power to

1. Name beneficiaries of your assets.

2. Nominate an executor to handle your affairs.

3. Name a guardian for your children if they are under the age of 18.

You do have the power to modify or even write a new will, and you should do so if you have major changes in your family or assets.

What Is A Living Will?

A living will seems similar to a will, but is actually a drastically different document. A living will dictates instructions for a person’s treatment preferences if they become unconscious or otherwise incapacitated. Living wills are often a great asset to medical professionals as they determine a course of action for your healthcare.

If you become unable to make medical decision on your own, you could use a living will to make stipulations about the use of feeding tubes and respirators, or any other equipment or medication that prolongs life.

The California Natural Death Act lays out the legal stipulations behind a living will. Creating one gives you the power to appoint someone else to carry out your wishes if you are unable to, and also binds doctors to respect any decision that has been made by the person you appoint. A doctor who acts in good faith pursuant to the declaration of your living will is not subject to any criminal, civil or professional liability.

It is always a good idea to work with an estate-planning attorney to craft a living will.

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About the Author

Julie M. Fiedler, an Attorney at Law, has been a resident of San Ramon since 1988. With over 30 years of experience in healthcare and senior services as a Registered Nurse, she is recognized as a Certified Elder Law Attorney (CELA) by the National Elder Law Foundation. Julie is accredited by the Department of Veterans Affairs to assist individuals with VA benefits. Her extensive involvement includes serving on the Board of Directors for the National Academy of Elder Law Attorneys, Inc., and as the past President of the Northern California Chapter of the National Academy of Elder Law Attorneys. She is an active member of California Advocates for Nursing Home Reform and ElderCounsel. Additionally, Julie Fiedler has contributed her leadership skills as President of the Adult Day Services Network of Contra Costa.