Many people believe a simple or general will and a living will (also known as an advance medical directive) are the same document.
In fact, the two documents are about as different from one another as they could be, although both deal with situations which render you incapable of communicating your wishes—one because you are incapacitated, and the other because you have passed away.
Both documents are extremely important parts of your total estate plan, and understanding the differences between the two can help you determine whether you need one or both.
If you are concerned about what would happen to you if you were to become incapacitated, a living will clearly lays out your preferences while a last will expresses your decisions for the distribution of your assets after your death.
The time when a living will takes effect is when you become incapacitated—but are still alive. The time at which a last will takes effect is after you die.
A living will allows the person you designate (known as your “agent”) to make decisions on your behalf once you are incapacitated (a coma, a vegetative state, or a state in which you are unable to communicate). A last will has no legal impact until you die, then it must be filed with the probate court, and usually names an executor who is responsible for inventorying your estate, distributing your assets to your named beneficiaries and paying your obligations.
The health care agent named in your living will does not require prior approval from the court. You will express your preferences for treatment in your living will, such as whether you want to receive life support treatments such as IV feeding and artificial respiration.
Your last will expresses your preferences regarding the disposition of your personal and real property, as well as your other assets. If you have minor children, even if you have a trust, you must also have a will if you want to name a guardian for the children.
When choosing an agent for your living will, it is crucial you choose someone who you trust implicitly—someone you consider very dependable. You may also need to choose someone you believe will be able to assert your healthcare wishes when others (like family members) argue against them—someone who won’t bow under pressure. As an example, suppose you do not want to be placed on a machine that breathes for you. You state this in your living will, and your designated agent is aware of this. Yet when the agent asserts your wishes, your family members argue that they do want you placed on a breathing machine.
Although you do not necessarily have to name someone who lives in Virginia as your agent, the person you name should, at least, be willing and able to travel to your bedside when necessary. The same is true of the executor of your will. While that person does not absolutely have to live in Virginia, be aware that it will take time to close out your estate, including the time it takes to probate the will.
You must be over the age of 18 to have a living will, and you and two witnesses (who are not your designated healthcare agent) must sign the document. If you are granting your agent the power to direct your burial or cremation, he or she must sign that part of the document in addition to the two witnesses.
You must also be 18 years old to make a will, and you must be mentally competent and must not be under any type of undue influence or duress. Just like your living will, you will need two witnesses to sign the will. Although Virginia law does not require a will to be notarized, it is highly recommended, and if your will includes a notarized “Self-Proving Affidavit,” it will be presumed by the court to be properly executed and will be accepted without testimony from the two witnesses.
As you can see, both a will and a living will are extremely important parts of your overall estate plan. While some people choose DIY wills and living wills, if you want to ensure all your decisions and wishes are properly followed upon your death, it is highly beneficial to consult a North Virginia estate planning attorney.