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A Will and a Living Will: What is the Difference?

Although it is a difficult subject to discuss, what will happen to your possessions after you are gone is something everyone should consider. Whether you have many assets or only a few, who will gain control of them should be predetermined before there is ever a need to act upon those wishes.

Some estate planning documents and terms can be confusing. A competent estate planning attorney can explain what each term means and how it applies to your particular situation. You should consider both your death and the time leading up to your death when preparing these documents. While a last will and testament serves to distribute your assets after death, a living will, also known in Virginia as an Advance Medical Directive, allows you to prepare for the time prior to your passing. It is important to distinguish between the two.

A last will and testament does not go into effect until after you die. Its purpose is to distribute your assets such as real estate or tangible personal property to those you wish to inherit them. A living will is designed to prepare for any time you may not be able to make medical decisions for yourself. If you lapse into a coma, if you lack capacity to understand your medical condition and make decisions, your family members and other loved ones will know what you wish for them to do on your behalf, thereby sparing them the emotional, financial and legal burden of deciding your end-of-life care.

A Last Will and Testament should nominate someone to carry out your instructions. Under Virginia law, you can appoint anyone over the age of 18. You should discuss it with the person ahead of time to make sure that 1) they are willing to serve; and 2) they are responsible enough to accept the task at hand. This person is known as an executor and they have a duty to make sure that your property is distributed as you requested in your will.

Different than a last will and testament, a living will is a person's declaration that, under certain conditions, the person wishes to die naturally and without artificial means prolonging the dying process. A person making a living will can specify the conditions triggering the living will’s instructions, and family members are bound to accept those wishes.

It is highly recommended that you have professional legal guidance at the drafting and signing of these documents. An attorney can foresee potential legal disputes and ensure that your instructions will be carried out. Legal guidance ahead of time can prevent your will from being contested or costing your beneficiaries greater expense in legal fees because of poor planning. It is also a good idea to periodically review whether your old estate plan needs to be updated, particularly if you have had a change in finances or circumstances.

Golightly Mulligan and Morgan has vast estate planning experience. Contact our office to set up a consultation to review your estate plan today.

Case results depend upon a variety of factors unique to each case. Case results do not guarantee or predict a similar result in any future cases. Also, nothing in this website creates an attorney/client relationship, and you should not leave anything of a confidential nature on this website.

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