Understanding the Key Differences Between Living Wills and Last Will & Testaments

The Chamberlain Law Firm

Living Wills vs. Last Will & Testaments: What You Need to Know

As New Jersey estate planning attorneys, we understand the importance of creating a comprehensive plan that covers various aspects of your life. Two critical components of a well-rounded estate plan are a living will and a last will and testament. These legal documents serve distinct purposes and provide guidance for medical decision-making and asset distribution, respectively. In this article, we’ll discuss the key differences between living wills and last will & testaments.

The Primary Purpose of Living Wills and Last Will & Testaments

First, let’s examine the main objectives of each document:

Living will: Also known as an advance directive or healthcare directive, a living will is a legal document that outlines your preferences for medical treatment and care should you become incapacitated and unable to communicate or exercise medical decision-making. It typically addresses life-sustaining treatment, pain management, and end-of-life care. A living will, which specifies the individual’s medical treatment preferences, differs from a durable power of attorney, which appoints a person on the individual’s behalf to make healthcare decisions regarding general treatment decisions when the individual cannot do so themselves. However, these documents often work in tandem as a part of a comprehensive estate plan to ensure that an individual’s healthcare wishes are carried out in case of incapacitation.

Last will & testament: A last will & testament is a legal document that specifies how your assets and property should be distributed after your death. It also appoints an executor responsible for managing your estate and carrying out the instructions in your last will and testament. Additionally, a last will & testament may include other provisions, such as guardianship of minor children or instructions for the care of pets.

When Living Wills and Last Will & Testaments Take Effect

Living wills and last will & testaments come into play at different times. A living will takes effect during your lifetime if you become incapacitated and unable to make or communicate your own medical decisions. Incapacitation can occur due to a severe illness, injury, or cognitive decline, among other reasons. Before a living will comes into effect, a medical professional—usually a physician—must evaluate you and determine that you are terminal and incapable of making your own healthcare decisions regarding end of life care. Once this determination is made, the living will serves as a guide for healthcare providers and your designated healthcare agent (if applicable) to follow when making end of life care decisions on your behalf. The living will remains in effect as long as you are incapacitated and unable to participate in your own medical decision-making.

A last will & testament goes into effect after you pass away. Once you die, the last will & testament becomes a legally binding document that outlines how your assets and property should be distributed and who should manage your estate. The executor named in the last will & testament is responsible for initiating the probate process, which is the legal procedure for validating the last will & testament, settling any outstanding debts or taxes, and distributing the assets to the beneficiaries as specified in the last will & testament. The last will & testament remains in effect until the executor has completed the probate process and the estate has been fully settled and distributed according to the instructions in the last will & testament.

Scope of Living Wills and Last Will & Testaments in Estate Planning

Living wills and last will & testaments address different aspects of your estate. A living will focuses solely on healthcare-related decisions and preferences. A living will may, for example, specify an individual’s wishes regarding life-sustaining treatment, end-of-life care, or organ and tissue donation. In contrast, a last will & testament encompasses a broader range of matters, primarily dealing with the distribution of assets and property, guardianship of minor children, and care of pets.

Creating valid living wills and last will & testaments requires compliance with specific legal requirements. In New Jersey, a living will must be in writing, signed by you (or someone acting on your behalf), and either witnessed by two adult witnesses or notarized. A valid last will & testament in New Jersey must be in writing, signed by you (the testator), and witnessed by at least two competent witnesses who are not beneficiaries under the last will & testament.

Consult a New Jersey Estate Planning Attorney

Having both a living will and a last will & testament is crucial to ensure your medical treatment preferences are respected during your lifetime, and your assets are distributed according to your wishes after your death. Our experienced New Jersey estate planning attorneys can help you create documents that comply with the Garden State’s legal requirements and accurately reflect your preferences. Contact the Chamberlain Law Firm today at (201) 273-9763 to discuss your estate planning needs and protect your legacy for the future.

This article is for informational purposes only. It is not intended as legal advice. In the event you would like to speak with a lawyer about the specifics of your case, contact The Chamberlain Law Firm at (201) 273-9763 to schedule a consultation.

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