Living Will v. Living Trust

What is a living will? What is a living trust? While they are both estate planning documents, that is where the similarities end.

Living Will

A living will is a type of advance healthcare directive that sets forth those actions that a person does or does not want taken on his/her behalf if he/she is unable to make decisions by him/herself because he/she is no longer responsive, in an irreversible coma, etc.

Some state statutes limit when a living will becomes effective to situations in which a person has a terminal condition or is in a persistent vegetative state, while other states do not impose such limitations.

In years past, living wills were drafted so as to give health care professionals broad authority to make final decisions once a living will takes effect, e.g. upon incapacitation. Recently, however, living wills are being drafted to generally articulate the wishes of the incapacitated person and instruct that person's agent, pursuant to a durable health care power of attorney, to make final decisions in accordance with the provisions of his/her living will.

Contrary to the beliefs of many, a living will does not affect the distribution of a decedent's assets like unto a traditional will. Although this may seem confusing, both a living will and a traditional will are the last expressions of a person's desires: a living will applies while a person is living, but a traditional will applies after a person has died.

Living Trust

In stark contrast to a living a will, a living trust, which is simply a revocable trust used for estate planning purposes, is an arrangement that does set forth the distribution of a decedent’s assets similar to a traditional will. The term "living" is used to indicate that the trust comes into existence during a person's lifetime as opposed to at death — trusts that come into existence at death are often called testamentary trusts — and are principally used to avoid probate.

In fact, living trusts and living wills are not mutually exclusive; rather, because they serve very different purposes, they are complimentary and are often used in tandem as parts of an estate plan.

This brief overview of some important considerations associated with living wills and living trusts is by no means comprehensive. Always seek the advice of a competent professional when making important legal decisions.

Steve Cook is an estate planning attorney at Cook & Cook. Although his office is located in Mesa, Arizona, he represents clients throughout the Phoenix, Arizona Metropolitan area including the following east valley cities: Scottsdale, Paradise Valley, Tempe, Chandler, & Gilbert.

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