Planning Ahead

questions & answers

Question: What is the difference between a 'living will' and a 'last will and testament' type of will?

Answer:

A living will is used to express a person’s wishes regarding end of life decisions. Because these decisions are very personal, it is important that each person have a living will so that their wishes are honored. A living will can be executed (made official) that provides instructions for a caregiver to keep the person alive as long as possible. More common, however, is a living will that instructs the caregivers if the person is in a terminal condition, persistent vegetative state, or irreversible coma. If a person is in one of these conditions and the doctors determine there is no chance of recovery, a living will can direct the caregivers, on the person’s behalf, to refuse treatment or the use of artificial measures to keep the person alive.

If a person has specific wishes that fall outside of “terminal condition, persistent vegetative state, or irreversible coma,” he or she should discuss them with their doctor and then add their wishes on those areas of the living will form. Without a living will to express a person’s end of life wishes, he or she may be kept alive for years. If a guardian is appointed for the person, the guardian can ask the court for permission to terminate life support. However, if family members disagree over when and if to terminate life support, litigation can take a long time and be quite expensive. It is important that family members are made aware of a person’s wishes to keep family conflict to a minimum at such a difficult time. A sample living will can be found at (A.R.S. § 36-3262). You can also visit the Arizona Office of the Attorney General online for a Life Care Directive Packet and more information about planning for incapacity.

Unlike a living will that provides instructions regarding a person’s end of life, a will (sometimes called a Last Will & Testament) is a document that is used to distribute a person’s property (their estate) after they die. A will is not effective to transfer any property until the property owner dies. It is important to know that assets held jointly, “payable on death” or where a beneficiary is named (such as on life insurance, annuities and retirement plans) are distributed to those named people, regardless of what the will says.

Even if a person does not have a lot of assets, wills are useful tools so that parents can name an appropriate person to care for minor or disabled family members after the parents have passed away. Another benefit of a will is that it allows the person writing the will (called the testator) to name who will manage the distribution of property after the testator dies (when the testator dies, he is now called the decedent). This person is called the personal representative and he or she performs an important function in gathering the assets, taking an inventory of them, transferring title into the name of the personal representative as fiduciary (the one entrusted to do what is best for decedent’s estate), bringing legal actions to collect assets that belong to the decedent, dealing with the decedent’s creditors, handling tax proceedings concerning the decedent’s estate, and ultimately, distributing the decedent’s asset to the heirs or devisees (those beneficiaries listed in the will). Once a testator dies, the personal representative must have the will “proven” to be valid through the court process called probate. Simple estates can be probated informally and the forms for Maricopa County are located at the Maricopa County Superior Court  Self Service Center  online.

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