Will vs Living Will

“What's in a name? That which we call a rose by any other name would smell as sweet.”

- Quote from Romeo and Juliet by William Shakespeare

Words have meaning.

The quote above is my attempt not to bring back bad memories of high school English Literature class, but to illustrate how the true character of a thing does not change just because it is called by a different name. Here, Juliet attempts to convince Romeo that a name is nothing but a name and that their family names, and the squabbles that prevent their romance, are merely conventions with no meaning behind them.

Yet labels, descriptions and other helpful words do have value when explaining certain important concepts to others. This is certainly the case when referring to important legal documents such as a "Living Will" and a "Last Will & Testament". The short definitions of these two terms are:

  • Will: A document detailing your wishes regarding assets and dependents after your death. It is made while the individual lives, and is effective after they are deceased.

  • Living Will: A written document in which an individual voluntarily gives instructions regarding their health care at the end of their lives. For example, they can declare that their dying shall not be artificially prolonged under certain circumstances. It is made while the individual still lives, and is effective until they are deceased.

You might immediately detect a few differences.

  • A "Living Will" is effective until you die, while a "Will" is effective after you die.

  • A "Living Will" relates to end-of-life healthcare decisions, while a "Will" has nothing to do with healthcare decisions.

About the only similarities between the two documents is that they must include legally required language for them to be enforceable, and they act as a set of "instructions" for others to follow.

As will all aspects of Estate Planning, we explain the benefits and detriments, the differences and similarities, of various documents and how they can be used as "tools" in your planning toolkit. Feel free to reach out to us for a no obligation discussion on Estate Planning for you and your family.

Bonus Material: Indiana made a change to its law concerning another important document called an "Advance Directive" in the Summer of 2021. While a "Living Will" is a type of Advance Directive, it lacks an important characteristic. By contrast, an individual can use an Advance Directive to designate one or more adults as "health care representatives", with authority to make health care decisions and/or receive health information on their behalf. We prefer to equip our clients with Advance Directives that include the appointment of a health care representative, as opposed to Living Wills, because of this very valuable feature. The difference might be described this way: would you rather read a set of instructions on how to change the settings on your phone; or hand the phone to a willing teenager to fix it for you? Because a Living Will is a set of instructions that must be read and interpreted, often during difficult moments, our preference is to have our clients appoint a trusted individual to represent their interests, and be their advocate for health care. Not all health circumstances can be easily fit into the hard and fast rules set out in a Living Will. Allowing someone to work with the medical professionals to make the best decision that truly adheres to your wishes allows flexibility and, more importantly, accuracy.

-Robert L. Myers. January 5, 2022