What is the difference between a last will and testament and a living will?

Most people have heard of last wills and testaments, living trusts and other estate planning tools yet do not understand the nuanced differences between them. Though there are some similarities between estate planning tools, they are not all exactly the same. Let’s take a look at the most important differences between last will and testaments and living trusts.

An Explanation of Living Trusts

Niswanger Law in Monroe, La. answers the common question: What is the difference between a last will and testament and a living will?; image of female lawyer with long dark hair sitting with older couple pointing with her pen going over their last will and testament

Living trusts provide property management throughout one’s lifetime and also after death. If an individual serves as his or her own trustee, the trust ensures a successor assumes the role at the time of death or incapacity. There is no need for court intervention. Furthermore, living trusts make it that much easier to manage property. As an example, if an individual is disabled as a result of an illness or accident, a successor trustee manages the trust property. This means the inconvenience and expense of estate distribution through the court can be avoided.  A well-written living trust that is adequately funded bypasses the probate process, plans for the potential of incapacitation, controls the manner in which property is distributed after passing away and prevents financial information from being made available to the public.

Explaining the Last Will and Testament in Plain English

Last will and testaments are filed with the probate court, becoming a public court record available to anyone. There is a common misconception that a last will and testament is the same as a living trust. However, living trusts are private contracts between the trustmaker and the trustee. The details of living trusts are not made public unless there is a legal dispute over it that ends up going to court.

The Differences Between the Two

In short, the last will and testament dictates the manner in which assets are distributed and used after departing this plane of existence. Alternatively, living wills state wishes pertaining to life support after incapacitation occurs such as an irreversible coma, entering a vegetative state, etc. If an individual is incapacitated in such a manner and cannot communicate his or her desires, a living will certainly comes in handy as it states that individual’s desires pertaining to life support. A living will can also provide consent to an autopsy, distribute anatomical gifts and provide guidance for the manner in which one’s remains are to be disposed of, be it through cremation, burial or another form. The remainder of such posthumous decisions are detailed in the Last Will and Testament. 

In summary, the functionality of these legal tools is the primary difference between the two.  Living wills provide directions pertaining to the medical care of an individual still living yet incapable of communicating desires. Last wills direct asset distribution following death.

Niswanger Law is on Your Side

Our Monroe LA law firm is here to help you plan for the end of life and safeguard your assets.  Whether you can benefit from a last will and testament, a trust or another legal tool to plan for the end of your life, our team is here to explain the subtleties of those documents, safeguard your assets and ensure you have a sound estate plan in place. Contact us today!