Will vs. Living Will. What is the Difference.

Some people interchange will with a living will, but these are two completely different legal documents. A will, also called a last will and testament, provides your direction on who receives your property when you die. A living will is part of an advanced directive where you direct the kind of healthcare treatments you’d like to receive when you are incapacitated to make such decision.

Will

A will is a legal document you sign, where you state the persons who you want to receive your property. If you don’t sign a will in your lifetime, then the state will give your property to your closest living relatives in the order provided under state law. In that case, you will be considered to have died intestate. In New York, the persons who receive your estate when you die without a will are provided under EPTL § 4-1.1.

In order for your will to be valid, it must comply with the following requirements under New York state law:

1. Testator must be at least 18 years old and of sound mind and memory. EPTL § 3-1.1.
2. Testator signs the will at the end. Another person can sign the will in the name of the testator, but the signing must be done in the testator’s presence and under the testator’s direction. That person must also sign his own name. EPTL § 3-2.1(a)(1).
3. Testator must sign in the presence of two witnesses or must acknowledge to each of the two witnesses that the signature in the will is his. EPTL § 3-2.1(a)(2).
4. Testator must declare to the witnesses that the instrument he is signing or has signed is his will. EPTL § 3-2.1(a)(3).
5. Two witnesses must, within 30 days from each other, attest the testator’s signature as affixed or acknowledged in the witnesses’ presence. EPTL § 3-2.1(a)(4).

Living Will

A living will, as opposed to a will, is a document you execute that provides for written instructions regarding your health care wishes. It is usually part of an advanced directive, which is a set of legal documents that deals with your healthcare. In New York, an advanced directive may include the living will, the health care proxy, and the do not resuscitate order. You can also include the DNR order in your living will.

The living will becomes effective when you become incapacitated to make or communicate your medical decisions, i.e., when you are in a coma. It should not be confused with the health care proxy. The healthcare proxy is a document you sign authorizing another person to make your healthcare decisions in case you are incapacitated.

If you trust your health care proxy enough to make the correct decisions for you, then you can simply execute the health care proxy without the living will. However, if you would like your health care proxy to be guided or to make decisions within the framework of your living will, then you should execute both the living will and the health care proxy and state the limitations of the decisions your health care proxy can make within the framework of your living will.

For this reason, a living will and a healthcare proxy are usually signed together. The healthcare proxy makes your medical decisions based on the instructions you have left in your living will. You usually give a copy of your living will and healthcare proxy to your doctor.

Although advanced directive forms are available in the internet, having an estate planning lawyer draft your estate planning documents and customized it based on your objectives and requirements is recommended. Should you need more clarifications on a will vs living will or seek assistance in drafting estate planning documents, the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].