Last Will and Testament & Living Wills

When it comes to Estate Planning, many clients are confused as to whether they need both a Last Will and Testament and a Living Will. While the two documents may sound similar, they serve completely different purposes. So, what are the differences?

Last Will and Testament
The Last Will and Testament is a document that states your wishes about what happens to your possessions and dependents upon your death. It allows you to name the individual you wish serve as the executor of your estate – a person sometimes also referred to as a Personal Representative of the estate. That person will be responsible for administering your wishes through the probate process and working with the court to distribute your property after paying off any outstanding debts. A Last Will and Testament may also be used to name a guardian for your minor children in the event both parents pass away. The form of a Last Will and Testament is regulated by Florida Statute 732.502. The statute requires the document to be in writing and executed by you as the person making the Will (subject to certain limited exceptions) and must be signed in the presence of two witnesses. In order to be a self-proving Will (a Will which is easier to submit to the courts), a Notary Public should attest to both the signatures of the witnesses and your signature as the person making the Will.

Living Will
A Living Will is sometimes also referred to as an Advance Directive. It is a legal document that provides your personal written instructions regarding acceptable medical treatments if you are unable to otherwise communicate your intentions at the time of medical need. These instructions can include considerations such as whether or not you wish to be kept alive by artificial means when there is no chance for recovery, as well as levels of care you wish to receive. A Living Will can also provide guidance to your family and friends when facing difficult decisions regarding your medical issues. Florida Statute 765 addresses the various elements of a Health Care Advance Directive, including health care surrogates (parties to act on your behalf when you are in need of assistance), life-prolonging procedures and anatomical gift regulations. The “Advance Directive” is defined by statute as “a witnessed written document or oral statement in which instructions are given by a principal or in which the principal’s desires are expressed concerning any aspect of the principal’s health care or health information…” The Living Will is the written form of this directive which is created for the possibility that a day may come where you are unable to provide verbal directions to your family, friends or doctors. A Living Will should be signed by you, the party giving the directions, in front of two witnesses who also sign the document. A Living Will is not required to include a named health care surrogate.

While a Living Will and a Last Will and Testament sound similar, they are very different documents. However, both a Last Will and Testament and a Living Will are integral components of any estate plan. The Last Will and Testament is created to be “activated” upon your death – dictating post death transfers of property, guardianship of children and other testamentary activities. The Living Will is created to be “activated” while you are still alive – affecting your medical care and treatment in your final days and ensuring that your personal wishes are known to your family, friends and physicians. Each document should be prepared by an experienced attorney. You should be sure to let family or friends know where the documents may be located when needed. Also, be sure to review the Last Will and Testament and Living Will every two to three years to make sure your decisions and directives are up to date. Any updates should also be made with the assistance of an experienced attorney. A hand written “mark-up” to properly drafted, signed and witnessed documents may be non-binding and may, in fact, create confusion for the courts, your family and your friends.

In summary, proper estate planning with a Living Will can ensure that your family, friends and physicians understand what you want to happen during your final days or in the event of a lingering illness or an illness from which you have no hope of recovery. Proper estate planning with a Last Will and Testament will provide your family and friends certainty as to the transfer of your assets and of any guardianship matters upon your passing. The proper creation and execution of both documents place control of issues very personal to you in your own hands. Prior planning and proper documentation are the key and attorneys are available to assist you with the process.