A last will and testament and a living will are completely different legal documents. A last will and testament (“last will”) records how a person wants assets distributed after death, while a living will states healthcare preferences for the end of life when the person cannot communicate.
A last will takes effect after death and may address property, beneficiaries, an executor, guardians for minor children, and trusts for minor or incapacitated beneficiaries. A living will operates during a person’s lifetime and provides instructions about medical treatment if the person is unable to make or communicate healthcare decisions.
Last Will and Testament vs. Living Will
| Document | When it applies | Primary purpose | Common subjects |
|---|---|---|---|
| Last will and testament | After death | Directing the distribution of property and assets | Beneficiaries, executor, debts, guardians, trusts |
| Living will | During life, when a person cannot communicate or make medical decisions | Directing end-of-life medical care | CPR, ventilators, feeding tubes, dialysis, comfort care, organ donation |
Despite their similar names, last wills and living wills are legal documents that serve different purposes. A last will and a living will manage different aspects of your life, but both make sure your affairs are managed according to your wishes.
What Is a Last Will and Testament?
A Last Will and Testament is a legal document that expresses your final wishes concerning the distribution of your assets and property after your death. It specifies who will inherit your real estate, financial accounts, and personal belongings.
The person who signs the last will is called the testator. The people or organizations that receive assets from the will are called beneficiaries. Any property you own - including real estate, vehicles, bank accounts, and personal items - can be passed on to someone via your will.
A last will can also allow testators to name a guardian for minor children. You can also use your will to nominate guardians for your children, dependents, or pets, if you have them. This ensures that anyone currently in your care is provided for, even if something happens to you.
The Executor or Personal Representative
In a last will, the testator nominates an executor, the person who will be responsible for handling your estate after death. A Last Will and Testament also allows you to name an executor, or personal representative, responsible for managing your estate, paying debts, and carrying out your instructions as outlined in the will.
Your executor will distribute assets to your beneficiaries, pay outstanding taxes and debts, close accounts, and more. They will also administer your estate, pay valid claims brought by creditors, and distribute your property to the designated beneficiaries.
An executor does not have the authority to collect or distribute assets until the last will is probated by the Surrogate’s Court in the county in which the testator was a resident at the time of his or her death.
Beneficiaries, Guardians, and Trusts
A last will states what assets you would like to have distributed to certain people, charities, or other entities, known as beneficiaries. For parents with young children, a last will can also allow testators to name a guardian for minor children.
If there are beneficiaries that are minors or incapacitated, it can provide that the assets be distributed into trusts on behalf of those beneficiaries. Your last will and testament can also be used to designate guardians for your minor children or other dependents.
A trust is a separate legal arrangement that allows you to transfer assets to a trustee for the benefit of beneficiaries, potentially offering benefits like probate avoidance and privacy, and can facilitate asset transfer during your lifetime.
What Happens Without a Last Will?
If you pass away without a will, the intestacy laws in Utah or the state in which you reside will govern how your property is distributed. If you die without a will, state-specific laws, called intestacy laws, determine who receives your property and other assets.
These laws may not align with your wishes. Important people in your life who would not inherit if you die without a will include unmarried life partners, friends, relatives not next in line on the state’s priority list, pets, organizations and institutions, and business partners.
What Is a Living Will?
A living will is a legal document that lets you specify your healthcare preferences in case you’re ever unable to communicate them - for example, if you were in an accident and were unconscious. It is a written document that specifies your end-of-life medical decisions.
A Living will, also known as an Advanced Healthcare Directive in Utah, is a legal document that allows you to outline your healthcare preferences in the event that you are unable to communicate them yourself. A living will is also known as an advance directive, a medical directive, or an advance healthcare directive, depending on where you live.
A living will allows you to leave written instructions that explain your health care preferences if you are determined to have a terminal illness or are at the end of your life and you are not able to communicate your wishes. This document only becomes effective when you are unable to make your own decisions, and it is believed that you are in an irreversible state with no reasonable expectation of recovery.
Typically, your living will doesn’t go into effect unless you become incapacitated. For example, if you become unconscious after an accident or during a serious illness, a living will ensures your treatment preferences are known and respected, including life sustaining measures as well as end-of-life treatment.
What a Living Will Covers
A living will outlines directives for your end-of-life health care, including what, if any, life sustaining procedures you want. Ultimately, the details of your living will are specific to your desires, but there are several options to consider when putting one together.
A medical directive deals exclusively with healthcare decisions such as whether you want life-sustaining treatment in situations involving terminal illness, end-stage conditions, or a persistent vegetative state. It does not replace or overlap with your last will.
A living will provides clear instructions to medical professionals and your loved ones about the types of life-sustaining treatment you would or would not want, such as artificial respiration, feeding tubes, or resuscitation, ensuring your values and preferences guide your care in critical health situations.
Examples of Living Will Directives
A living will can address whether or not you wish to receive the following treatments:
- Cardiopulmonary resuscitation (CPR)
- Mechanical ventilation
- Tube feeding
- Comfort care (palliative care)
- Organ and tissue donations
- Donating your body for scientific study
You can include directions for things like:
- DNRs
- Ventilator use
- Artificial nutrition and hydration
- Life support procedures
- Organ donation
- Burial and/or cremation
- Palliative and/or hospice care
- Surgeries you are/aren’t willing to undergo
- Hospitalization vs. home care
A living will can cover your preferences on many healthcare procedures, including breathing tubes or ventilators, feeding tubes, blood transfusions, dialysis, types of pain medications, organ donation, and CPR preferences, which are similar, but separate from a do not resuscitate order.
Living Will vs. Health Care Proxy
In contrast to the living will is a health care proxy, in which you name an agent to make medical decisions on your behalf if you are unable to do so. A living will addresses only specific medical circumstances.
Unlike a health care proxy, you do not designate an “agent” when executing a living will. This document is used as a directive - to instruct your health care providers, and the agent of your health care proxy, as to your specific wishes for medical care.
For broader decision-making, a healthcare surrogate or healthcare proxy can communicate with doctors, review medical records, and ensure your wishes are honored when you are unable to speak. The person you choose as your healthcare proxy will be responsible for fulfilling your wishes, should you no longer be able to make a medical decision for yourself.
They’ll be able to make choices about your medical treatments and tell your doctors or other health care provider how to proceed if and when necessary. It’s important to choose someone close to you or a family member whom you trust both to handle this responsibility and respect your wishes, whatever they may be.
Most living wills refer to the “agent” to withhold or withdraw treatment, this can refer back to the agent named in a health care proxy. The living will should be used by your health care agent as a guide to carry out the wishes.
Coordinating your surrogate designation with your living will provides seamless protection during emergencies. Aligning a living will with a durable power of attorney and healthcare surrogate designation also helps prevent contradictions among documents.
When Should You Make a Living Will?
It’s entirely up to you when you write your living will. There are a few indicators that it could be time to make one.
The American Academy of Estate Planning Attorneys recommends assessing your situation based on the “Five Ds” of advanced directives:
- Decade: As you age, you may want to consider making plans for what you’d like doctors and other parties to do, should anything happen to you.
- Death: If someone close to you - like a spouse or your healthcare proxy - dies, you may want to consider naming someone else to be responsible for your end-of-life medical decisions.
- Divorce: After a divorce, you may want to reassign a healthcare proxy or otherwise update your wishes in a health care directive.
- Diagnosis: If you receive a medical diagnosis that could be life-threatening, it’s important to have your plans laid out ahead of time so it’s clear what your treatment decision is.
- Decline of health: If and when your health begins to decline, you may be thinking about how you’d like your affairs to be handled.
The best time is before a medical crisis occurs. If you are aging, have recently been diagnosed with a serious condition, or want to ensure your children do not face difficult decisions later, an elder law or estate planning attorney can guide you through the process.
How to Write a Living Will Step by Step
Your living will is your space to describe exactly how you want your medical treatments and healthcare arrangements to proceed in your final days, and can be part of your estate planning. Before writing your living will, it’s important to take the time to think about how you want those last days to look.
Living will regulations and requirements vary by state, so make sure to check with yours prior to drafting your document. Once you’ve determined what’s required, you can get started with writing your living will.
Step 1: Choose a Method
The first - and most common - method of writing a living will is through an estate planning lawyer. Consulting with a professional helps ensure you’re following your state’s guidelines and being as thorough as possible.
You can also write your will on your own, either from scratch or using a template. Enrolling in a legal insurance plan can also grant you access to helpful online tools and services that help you create a living will.
Step 2: Outline Your Medical Decisions
Once you’ve decided how you’re going to write your will, it’s time for the hard part - choosing exactly what elements you’d like to include. Reference the above list of medical considerations and determine which are most applicable to you and your circumstances.
Most templates have the structure in place for how to write each of these directives. You’ll be responsible for filling in each element you’d like included. If you’re using a lawyer, you’ll need to clearly communicate your wishes, while the actual writing will likely be completed by your attorney.
These decisions must be expressed clearly. Even though people can download template forms, they often leave out important details or use vague wording that creates uncertainty.
Step 3: Name a Healthcare Proxy
The person you choose as your healthcare proxy will be responsible for fulfilling your wishes, should you no longer be able to make a medical decision for yourself. They’ll be able to make choices about your medical treatments and tell your doctors or other health care provider how to proceed if and when necessary.
It’s important to choose someone close to you or a family member whom you trust both to handle this responsibility and respect your wishes, whatever they may be.
Step 4: Sign and Store the Document
Most states require living wills to be signed by you and two witnesses. However, make sure to check your state’s individual guidelines to ensure the validity of your will.
Once you’ve signed your living will, it’s valid unless you choose to cancel it. Find a designated place to store it where it’ll be safe until it’s needed.
Requirements differ by jurisdiction. For example, notarization is not legally required under Florida law, although some people choose to notarize their documents because healthcare providers often view notarized forms as more authoritative.
Why a Living Will Is Important
Most importantly, a living will helps to ensure your end-of-life wishes are respected, even if you’re unable to enforce them yourself. A living will acts as a resource when the time comes to make health care decisions about your final days.
It also takes the pressure of making the right choices off of your loved ones, so you all can rest assured that you’re receiving the care you chose. A living will can help your loved ones navigate difficult medical decisions with confidence, knowing it’s what you chose for yourself.
Without one, doctors must rely on family members who may disagree, or who may have no clear idea what you would have wanted. A properly drafted document removes uncertainty and prevents emotional stress during already difficult moments.
Your living will also gives your family confidence that they are honoring your values, not making decisions in the dark. A living will gives you control over deeply personal healthcare decisions and protects your dignity, your comfort, and your family’s clarity during a medical crisis.
Why You May Need Both Documents
Most people should have both a last will and testament and a living will, as they serve two very different purposes. While a living will protects your wishes medically during your lifetime, a last will and testament ensures your loved ones are provided for when you pass away.
A solid estate plan should include both a living will and a last will and testament. They each serve different purposes and are complementary rather than interchangeable documents.
Both documents memorialize your wishes, making them known to your family and making it easier on them if they have to make decisions on your behalf. A living will and last will and testament are critical components of estate planning and help ensure your wishes are carried out seamlessly in the event of either a healthcare crisis or your death.
A last will and testament is meant to respect your wishes in the time after your death, while a living will is used to honor your wishes in the last moments of your life. It is wise to inform those close to you what your wishes are for the last moments of your life and thereafter once you pass away.
Clarity to your named agent or executor is the best way to ensure your wishes are carried out. Your living will should be coordinated with the rest of your estate plan so there are no ambiguities and healthcare providers can understand and respect your wishes.
