When it comes to creating a comprehensive estate plan, the average person can become confused rather quickly given the vast number of unfamiliar documents and concepts that typically go into an estate plan. Even something as seemingly simple as a Will can be more complicated than it appears when you realize there are several types of Wills. What is the difference between a Will and a Living Will? Do you need both in your estate plan? Understanding the difference between a Will and a Living Will is a good place to start if you want to learn more about estate planning.
What Does a Basic Last Will and Testament Accomplish?
A Last Will and Testament is a legally binding testament, usually in writing, that allows you to make both general and/or specific gifts of assets from your estate to designated beneficiaries. For example, you might make specific gifts of your home and $100,000 to an adult child. You could also gift a percentage of your estate to a beneficiary. For example, you could gift 50 percent of your entire estate to each of your two adult children. Those gifts are legally required to be honored after your death. Your Will also allows you to make two additional important decisions. First, you will appoint someone to be the Executor of your estate in your Will. The Executor of your estate is responsible for overseeing the probate of your estate following your death. A common estate planning mistake is to appoint a spouse, family member, or close friend as your Executor without taking the time to consider whether he/she is really the person best suited for the job. Second, you have the ability to nominate a Guardian for your minor children in your Will. Your Will, in fact, is the only opportunity you have to tell a judge who you would want to take over the care of your children if a Guardian is needed. Ultimately, a judge will have to appoint a Guardian if one is ever needed; however, you do not want to miss out on the ability to guide that judge in making such an important decision.
What Is a Living Will and Do I Need One?
Throughout the course of your lifetime, you will make thousands of health care related decisions for yourself. Most will be relatively minor and inconsequential decisions while some may be life-altering. What they all have in common is that you will make them. What happens, however, if you are incapacitated at some point in the future and cannot make health care decisions for yourself? To ensure that your wishes will continue to be honored despite your inability to communicate them, California law allows you to execute an advance healthcare directive now. It is California’s version of a living will and also allows you to designate an agent to make medical decisions on your behalf.
In addition to the confusion that sometimes exist between a Last Will and Testament and a Living Will, there also is confusion between a Living Will and Living Trust. The latter is an estate planning tool, similar to a Last Will and Testament that also has the advantage of being able to be effective not just after your death, but also in the event you become incapacitated. A major advantage of a Trust over a Will is that, when it is properly created and funded, it allows for the avoidance of costly, time-consuming and burdensome court procedures such as probate and conservatorship.
An advance directive is a written statement of a person’s wishes regarding medical treatment that is created and executed to ensure those wishes are carried out should the person be unable to communicate them to a doctor. Because advance directives are predominantly governed by state law, the type of advance directives that are recognized, the decisions that can be made, and the language necessary to create an advance directive can vary slightly from state to state. Most states recognize at least two basic types of advance directives—a Health Care Power of Attorney and a Living Will. The former allows you to appoint an Agent to make decisions for you in the event you cannot make them while the latter allows you to proactively make health care related decisions for yourself ahead of time. As noted, California combines both of the decisions into a single document, the Advance Health Care Directive.
Because such a Directive must contain specific language and be properly executed to be honored when the time comes, be sure you work with an experienced and qualified California estate planning attorney in creating this document.
Contact California Estate Planning Attorneys
Please download our FREE estate planning checklist. If you have additional questions or concerns regarding your Will or Living Will, contact the California estate planning attorneys at the Northern California Center for Estate Planning & Elder Law today by calling (916)-437-3500 or by filling out our online contact form.