Although these documents sound the same, they serve completely different functions and are both important and necessary parts of your estate plan.
What Is a Last Will and Testament?
Are you wondering about the difference between a living will and a last will? Your Last Will and Testament (simply known as a “will”) is a written document that disposes of the assets you own upon your passing. After you die, the original document is sent to the Court and a petition is filed to “prove-up” the will as authentic.
The will nominates the person to be in charge of overseeing the administration of your estate (known as the “personal representative”). The personal representative is responsible for creating an inventory of your assets, issuing notices to creditors, and distributing the assets to the persons designated in your will (the “beneficiaries”).
This process is called the “probate administration and is supervised by the Court. In Nevada, probate administration can take six to twelve months.
What Is a Living Will and How Does It Differ?
A Living Will is also known as an “advance directive”. The advance directive has absolutely nothing to do with the distribution of your property upon your death. Rather, it addresses your desires with regards to the continuation or withdrawal of life-sustaining treatment.
The difference between a Will and a Living Will is that while your will becomes effective upon your death, the living will become effective when your doctor determines you are no longer able to make decisions about your medical care (known as “incapacity”).
Your living will nominate a person you trust to serve as your health care agent who has the authority to direct your physician regarding your desires to remain or remove life-sustaining treatment in certain circumstances.
If I Have a Will, Do I Also Need a Living Will?
Absolutely. If you don’t have a living will and become incapacitated, your family may have to resort to seeking court intervention in order to be appointed to make medical decisions (this process is known as “guardianship”).
Guardianship can be expensive and time-consuming. More importantly, it can be easily avoided in most instances with effective estate planning.
For more than 30 years, Attorney Lee A. Drizin has practiced in the areas of estate planning, probate, trusts, guardianship, and real estate matters representing clients throughout the state of Nevada.
Drizin Law is providing this information for educational purposes only. It should not be construed as legal advice or a legal opinion as to any specific facts or circumstances. This information is based on general principles of Nevada law at the time it was created and you should be aware laws frequently change. Moreover, the laws affecting you may differ depending on the circumstances. You should consult with a qualified attorney in your own state or jurisdiction concerning your particular situation. Review of this information does not create an attorney-client relationship.