Often, the terms “Living Will” and “Last Will” are used interchangeably, but in actuality, they are completely different legal documents that serve separate purposes.
So many people have heard “you need a Will.” Unfortunately, it is not clear what that means, which document someone might mean, and the actual process to put a “will” in place. One deals with your estate and affairs after you pass. The other provides guidance to medical professionals regarding your end of life wishes.
The challenge is that not everyone needs a Last Will, and, not every facility honors or uses a Living Will.
The following details of the key differences between the two legal documents:
A Living Will, also known as an advance directive, is a legal documents that provide instructions as to your end of life medical care in the event you become seriously ill or incapacitated and you are unable to communicate your preferences yourself. For example, a living will can set forth your desires when it comes to receiving life-sustaining medical care or breathing tubes. In Indiana, there is guidance you can provide as to artificially supplied nutrition and hydration.
Last Will and Testament
A Last Will, sometimes also referred to a Last Will and Testament, is a legal document that typically provides instructions on what should happen to your assets in the event of your death. In Indiana, without a Will, you will die intestate where your assets will be divided according to Indiana intestate laws, distributing your property to others depending on their relationship to you. A Last Will primarily comes to be used in a Probate Administration, when Probate is necessary to manage a person’s estate. Many people who die in Indiana do not need to engage the Probate Court.
With or without a Last Will, the Probate Court has a deliberate process which must be followed. This includes notification to a decedent’s heirs, creditors, and possibly, other family members. Additionally, distributions must be made in a particular order dictated by Indiana Probate Code, regardless of the contents or instructions of a Last Will.
In a Last Will, you nominate a person to to the Court to serve as the personal representative, or legal representative of the estate. It is also used to nominate a Guardians for your minor children to the Court.
Which “Will” Do I Need
Considering the unique application of each document, you may need or want both. You never know when you might become seriously ill or incapacitated, and unfortunately, some people suffer untimely deaths. But no matter your age or circumstances, if you want peace of mind that your wishes and desires are followed after death or while incapacitated, it is a good idea to set out your preferences in a living will and last will and testament sooner rather than later.
Valparaiso Estate Planning Lawyers
An experienced Indiana Estate Planning Lawyer can listen to your particular needs, advise you of your options, and help you draft a set of legal documents that clearly reflect your needs and desires. If you would like to discuss your situation, our experienced and knowledgeable Indiana Estate Planning Lawyer, RG Skadberg, provides a free consultation to help you better understand your needs and options.
About the author
Founder/Attorney, CCSK Law
I create customized solutions for families to address their planning needs.
I provide plans clients understand. Also, they make sure they know when to use them, and do so affordably. I love the opportunity to break through the legal jargon to clarify issues. We find success when we work through a person’s situation and put the law to work for them.