This is confusing to many people, and quite understandably so, because the names are so similar. But these are very different documents and they do very different things.
A Will is for Instructions upon your Death. A Will is a written set of instructions that tells the Probate Court Judge; who will receive your estate (your property that does not pass by beneficiary designation or joint ownership) after you die; who will raise your children if you die while they’re still minors, and your spouse is unavailable to care for them; whether your beneficiaries receive their inheritance outright or in a trust; and who will serve as your personal representative – that is, the person who will pay your bills and taxes and distribute the rest of your estate to your beneficiaries.
A living trust is for financial affairs. It is similar to a traditional will because it gives instructions for the disposition of your assets after you die. But, unlike a traditional will, a living trust also provides instructions in the event you become incapacitated before you die. After a living trust has been established, you transfer your assets to it by changing the titles and beneficiary designations of your assets to your trust. This keeps you, your family and your assets out of the courts if you become incapacitated and avoids probate after you die.
A living will is for medical affairs. It is a document that lets your physician know the kind of life support treatment you would want in case of terminal illness or injury, in the event you cannot otherwise communicate your wishes to your physician. Through your living will you appoint one or more health care “proxies” – people you trust who will communicate your end-of-life decisions to medical personnel. The wording in a living will is short and standard; you can get a copy from your attorney, doctor or hospital. But because the issues can often be confusing, it’s very important that you discuss your options with a knowledgeable estate planning attorney.
Living wills have limitations:
As a result of these limitations, many people also now have a durable power of attorney for health care. This document is legally binding and enforceable, and it applies in much broader medical circumstances. It lets you give legal authority to another person (called your health care agent) to make any health care decisions for you if you are unable to make them for yourself, and regardless of whether you have a terminal condition or are in a coma.
The critical part of health care planning is to share your thoughts and wishes regarding end-of-life issues not just with your agent, but also with your family, other loved ones and your doctor.