What's The Difference Between A Living Will and A Last Will and Testament?

Video Summary

What is the difference between a living will and a last will and testament? A living will is a term that I usually use in describing a dying declaration, and that is set forth in the Florida statues that sets forth when life support can be discontinued. You sign the living will or the dying declaration that says that there are three circumstances where you're directing and authorizing your healthcare surrogate who you designate to discontinue life support. One is if you have a terminal condition. This means you're laying there and you're really not conscious, and the doctors don't think you're going to regain your consciousness. Besides that, you have a terminal condition. That's whenever the healthcare surrogate would be authorized to discontinue life support.

The second one is if you have an end stage condition. That's whenever the doctors or whatever can examine you, look into your eyes, or check on your vitals and determine that your system is shutting down and that you're not going to survive very long anyway whether you're on a respirator or life support. The third one, which is the one that most people are concerned about, is in the event that they're basically brain dead and they don't have any EEG brain waves. There was a case several years ago by the name of Schiavo where she expressed this verbally but did not put it in writing. There was years of litigation and millions of dollars in attorney fees spent over whether or not to discontinue life support. Simply executing this will authorize your healthcare surrogate or whomever you designate to discontinue life support if you are basically not able to, brain dead, as far as that's concerned.

Whereas that's what your living will is, then your last will and testament, that deals with your money. That takes effect before you die. The living will is what transpires while you're still on this planet, although not in very good shape. The last will and testament does not become an operative until such time as you die, and then that sets forth what your plan is as to whom you want to receive any assets that are in your name alone. It's really important that you do estate planning where you check with an attorney or check with our office, set up an appointment, and discuss how you have your assets titled. You can have this great will that says, "I leave X number of dollars to my sister, and I leave X number of dollars to my brother, and I leave all the rest of it to my three grandchildren," and set forth all of that. Then you've set up all your accounts so that they're basically joint accounts, and there is no money there to take care of these provisions. The will doesn't really express or show how you want your assets distributed.

You need to look at all of your assets and then determine whether or not you want them to be titled in a certain way so they automatically go to a particular beneficiary. Then you can recite that, the same operative provisions in your will that says, "Well, this is what I've done, but this is what I really mean. I want them to receive these joint assets," or talk about the overall estate plan so that you don't have any duplication in the event there are assets and you've already provided for them with a joint account.

That is your last will and testament. The last will and testament only controls assets that are in your individual name and do not have a designated beneficiary or co-owner. Wills do have to be probated. Sometimes folks think that because you have a will, you don't have to probate those. Hopefully that's the distinction that you have between a living will and a last will and testament. Give me a call if you'd like to do some estate planning. My phone number is 727-847-2288.