What’s the Difference Between a Will and a Living Will: Understanding Your Estate Planning Documents

Estate planning is a crucial step in ensuring that your wishes are carried out and your loved ones are taken care of in the event of your incapacity or passing.

Two commonly used estate planning documents are a Last Will and Testament (commonly referred to as a Will) and a Living Will.

While both documents play a role in outlining your intentions, they serve different purposes. In this article, we'll explore the difference between a Will and a Living Will, helping you understand their significance and when they come into effect.

What is a Will?

A Last Will and Testament is an estate planning tool that outlines a person's final wishes for the distribution of their assets and the care of their dependents after the person's death.

Last Wills serve as a guide for a decedent's loved ones, making sure their estate is handled as per their instructions.

difference between a will and a living will

In your Will, you can name an executor who will be responsible for managing the administration of your estate.

You can specify how your assets should be distributed among your beneficiaries and even designate guardians for your minor children.

Last Wills only take effect upon a person's passing and go through the probate process, which is the legal validation of the document and the administration of their estate.

What is a Living Will?

A Living Will, on the other hand, is a different type of document that focuses on your medical care preferences.

It is also known as a living trust, and it allows you to express your wishes regarding medical care, end-of-life care, and life-sustaining measures in the event that you become unable to communicate or make decisions for yourself.

A Living Will, or living trust, comes into effect while you are still alive but unable to make your own healthcare choices either because you are terminally ill or incapacitated due to other reasons.

It provides guidance to healthcare professionals and your family members regarding your desired medical treatments, such as the use of life support, resuscitation, or artificial nutrition.

The Difference Between a Will and a Living Will

The main difference between last wills and living wills lies in their purpose and when they take effect.

A Will is primarily concerned with end-of-life decisions, such as the distribution of your assets and the appointment of guardians for minor children after your passing.

It is authorized during the probate process, ensuring your estate is settled according to your wishes.

On the other hand, Living Wills focus on healthcare decisions and are relevant during your lifetime.

With living wills, a person is able to express their preferences for medical treatments, ensuring that their wishes are respected and followed if they are unable to communicate them themselves.

A Living Will does not act as a substitute for a Last Will

It's important to note that a Living Will is not a substitute for a traditional Will.

While a Living Will addresses healthcare decisions, including the choice of life support, it does not cover the distribution of your assets or other important matters that are typically addressed in a Last Will and Testament.

Should a person die without a valid last will, their estate will be subject to Florida's intestacy laws, as they will be regarded as having died intestate.

The Importance of Living Wills and Last Wills

Having both a Will and a Living Will is crucial for comprehensive estate planning.

While a valid Will ensures the proper distribution of your assets and the appointment of guardians, a Living Will provides guidance on your healthcare choices.

Together, both legal documents provide a comprehensive plan that covers both financial and medical aspects and secures your peace of mind.

Having a Last Will and Testament and a Living Will in place can provide you and your family with clarity and certainty during challenging times.

By clearly outlining your wishes for asset distribution, guardianship, and healthcare decisions, you can alleviate potential conflicts and ensure that your intentions are respected.

Drafting a Will and a Living Will

To begin the process, it is advisable to consult with an experienced estate planning attorney. They can provide you with valuable guidance, explain the legal requirements, and help you draft both documents according to your specific circumstances.

How can an attorney help you with drafting your last will and living will?

During your consultation, the attorney will discuss your personal and financial situation, as well as your healthcare preferences.

They will assist you in creating a comprehensive Last Will and Testament that covers all your assets, designates beneficiaries, and appoints an executor to oversee the administration of your estate.

Additionally, they will guide you through the process of creating a Living Will, ensuring that your healthcare wishes are clearly stated and legally enforceable.

By working with an attorney, you can ensure that your Will and Living Will comply with the laws of your state and accurately reflect your intentions.

They will also help you understand any legal complexities, such as estate taxes or specific regulations related to healthcare decision-making.

Keeping your Living Will and Last Will safe

Once your Will and Living Will are drafted, it is essential to keep them in a safe and accessible location.

Inform your trusted loved ones, such as your spouse, children, or close family members, about the existence and whereabouts of these documents.

Also, you may want to consider providing copies to your chosen executor and healthcare agent, if applicable, and discuss your intentions with them.

Remember, estate planning is not a one-time event.

It is a dynamic process that should be reviewed and updated periodically, especially when significant life events occur, such as marriage, divorce, the birth of children or grandchildren, or a change in financial circumstances.

Regularly reviewing and revising your Will and Living Will ensures that they remain current and aligned with your evolving wishes.

Does having a Living Will and a Last Will help bypass the probate process?

Having a living will and a last will does not help bypass probate. A living will focuses on your preferred healthcare decisions and ensures your wishes are respected.

On the other hand, a last will is subject to probate, as it is the first thing courts require when deciding what to do about a decedent's estate.

If you would prefer to bypass probate, there are several strategies you can implement to help you with this.

Please contact us at James Brown Law to get clarification on any area that confuses you. We will be happy to answer all your questions.

What is the main drawback of a living will?

The main disadvantage of a living will is that it has limitations and may not cover all possible medical situations that could arise at the end of life. Also, living wills may not account for new treatments or changes in personal beliefs and wishes.

To overcome these limitations, it's helpful to use other advance care planning documents like a healthcare proxy or durable power of attorney for healthcare.


In conclusion, understanding the difference between last wills and living wills is crucial for comprehensive estate planning.

A Last Will and Testament addresses the distribution of your assets and the appointment of guardians, while a Living Will focuses on healthcare decisions.

By consulting with an experienced estate planning attorney and creating both documents, you can protect your assets, provide for your loved ones, and have peace of mind knowing that your wishes will be honored.

Seek Expert Help: Consult with an Attorney at James Brown Law

Take control of your future by taking the necessary steps to create a solid estate plan, starting with creating a Will and a Living Will.

To ensure that your estate planning documents are legally valid and tailored to your specific needs, it's recommended to consult with our experienced estate planning attorneys at James Brown Law.

We will guide you through the process, help you understand the legal requirements, and ensure that your wishes are properly documented.

Please contact us today to schedule an appointment.

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