The Difference Between a Living Will and a Last Will and Testament

One of the common misconceptions that many people have is that a Living Will and a Last Will and Testament are one of the same. In this post, you will learn everything that you need to know about the difference between these two documents from an experienced estate planning attorney in San Diego and how each can have an impact on your estate plan.

Although a living will and a Last Will and Testament sound the same, these documents play two distinct roles which is why we always recommend that you use both in your overall estate plan.


What is a Living Will?

A living will is a legal document that dictates which medical treatments you would like to receive if you’re no longer able to make these determinations for yourself. This document is extremely beneficial in the sense that it can help to give your loved one’s guidance regarding medical decisions if you are unable to do so. For example, a living will can dictate that you still wish to receive a basic level of care in the form of hydration or pain management, however, if you were to stop breathing you can opt that doctors do not take any extraordinary measures to bring you back to life.

It’s important to remember that there is no right or wrong answer when it comes to the type of medical care you would like to receive. We always recommend that you take the time to consider your choices which is why as experienced estate attorneys, one of our lawyers will review your options with you so you have a clear understanding of the terms of this document before you sign it. As an added advantage, one of our founding estate planning attorneys (Michael Jenkins) is also a Registered Nurse, so our firm truly understands how this document plays out in real life and what the choices you make actually mean to your family when the time comes.

To avoid the confusion between a Living Will and a Last Will and Testament, you’ll often hear us refer to this document as a medical directive, medical power of attorney, or advance health care directive. The document we put together for you will actually fill a few roles beyond a traditional Living Will in that it is responsible for i) naming your health care agent, ii) providing guidance on end-of-life choices, and iii) authorizing a release of protected health information to your agent so that they may make appropriate decisions on your behalf.


The Importance of a Last Will and Testament

A Last Will and Testament, on the other hand, indicates the wishes that you have for any assets that you leave behind after you pass away which is the reason why the terms of your Last Will and Testament only come into play after your death. One of the great benefits of having a Last Will and Testament is that you can personalize it to suit your exact wishes. You may want to indicate that all of your assets be left to your spouse or opt to leave percentages between your friends or close family members.

This document can also reduce the possibility of any legal arguments when you pass away. Unfortunately, even with a Last Will and Testament in place at the time of your death, a formal court process will likely need to be opened in order to administer the assets of your estate, depending on what exactly you own. While a Last Will and Testament can help make sure that the people of your choosing inherit your estate, it does not help you avoid the Probate Court process that is required to actually transfer the assets. A Last Will and Testament is certainly a useful tool in the Estate Planning arsenal and is much better than having nothing in place, but there may be more efficient tools to use other than a Last Will and Testament alone (such as adding in a Living Trust to the mix). Using the assistance of a skilled estate planning attorney in San Diego such as the ones at our firm, you can have the peace of mind of knowing that the wishes you have for your estate will be seen to in the most efficient way possible.


Related post: What is a Trust and what is a Will?


Schedule Your Consultation Today

At Jenkins & Jenkins, we understand the importance and benefit of utilizing both of these documents in your estate plan. Do you have more questions about the differences between a living will and a Last Will and Testament? Perhaps you have estate planning documents that you would like to update? A member of our estate planning law firm is always happy to speak with you in more detail about these critical distinctions and make any adjustments. Reach out to us today to book your consultation.


Testimonial from Lilybel, Satisfied Estate Planning Client 

After reaching out to multiple attorneys we decided to go with Jenkins & Jenkins and I am so happy that we did. We worked with Michael Jenkins for our estate planning and with both Michael and Caroline for the signing of the documents. It was an absolute pleasure to work with them. Michael and Caroline are professional, understanding, knowledgeable, polite, accommodating and very responsive. They made us feel comfortable and answered all the questions that we had. It can be difficult to discuss what will happen if we die but Michael and Caroline made this an easy process for us.

Michael Jenkins

Michael Jenkins

Estate planning became personal to Michael when his father passed away suddenly without any plan in place. Since that day Michael has made it his mission to educate everyone on the need for an estate plan, provide the legal advice and guidance needed, and ensure that no family is left dealing with estate issues while grieving the loss of a loved one.


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