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The Difference Between a Will and a Living Will and What it Means for Your Estate

 Posted on August 02, 2012 in Estate Planning

A will, also known as a last will, distributes a person's property after his death. A living will, on the other hand, explains what kind of medical care that person wants when he is still alive but unable to explain his wishes. In most states, both a will and a living will have similar requirements as to format, but the two documents serve very different functions.

The purpose of your will is to explain what you want done with your property when you are gone. It also allows you to name a guardian for your minor children. Your will does not legally take effect until after you die. Your living will, on the other hand, gives instructions to your family and doctors about how to treat you if you become incapacitated. You may explain what kind of care you do and don't want, as well as name someone to make your medical decisions on your behalf.

Most states require that both a will and a living will be written documents. A handful of states accept oral wills, but no state accepts oral living wills. Also, your will and your living will should both be signed by you and witnessed by at least two people. The requirements for witnesses to wills are different from those for living wills, so consult a DuPage County estate planning lawyer before you choose the witnesses for each document.

A will goes through probate, the process of wrapping up your estate and giving your property to the people listed in your will. Probate is overseen by the probate court. If you named an executor in your will, he works with the probate court to wrap up your affairs. A living will, however, is not usually supervised by a court, but is instead given to your doctors and other healthcare professionals. If you give someone power of attorney in your living will, that person works with your doctors to make sure your wishes are carried out.

The end result of your will, once probate is over, is that your debts are paid and the assets in your estate are given to the people you named in your will. The process of following your living will, however, ends when you die or when you regain the ability to make your own medical decisions.

There are many things to take into account when planning your estate, and even a choice of words in your will might make a difference. Do not leave things to chance, but contact a top DuPage County estate planning lawyer to help you determine your estate planning needs and to ensure everything is done correctly.

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