Nothing lasts forever, and however good your health or stable your finances, it never hurts to prepare for the worst. This is especially true if your family or finances have changed recently. It is also a good idea to periodically review whether your old estate plan needs amendments. Many of the terms used for the various estate planning documents can be confusing. As part of any comprehensive estate plan, you should consider both your death and the time leading up to your death. Both living wills and last wills and testaments are some of the documents that allow you to prepare for the future.
Please note that a living will is often referred to as “Advance Medical Directive” in the Commonwealth of Virginia. This can cause even greater confusion for some considering these issues for the first time.
To decide which document is right for you, the answer is clear: some form of both along with other documents! Make sure to consider:
Aims and Applicability
The most basic difference between a living will and a last will and testament is one of purpose. A last will and testament distributes your property after you die, and thus does not go into effect as long as you are alive. By contrast, a living will prepares for a time when you are in a coma or otherwise unable to make medical decisions for yourself. Both documents benefit your family members and loved ones: the former distributes your property while the latter spares them the legal, emotional, and financial toll of deciding your end-of-life care.
Both a living will and a last will and testament should nominate someone to carry out your instructions. In a living will, this person is known as an agent, and he or she is in charge of coordinating your health or end of life care. For example, your agent could approve or deny a specific procedure or treatment. In addition, an Advance Medical Directive (living will) may direct that a specific procedure or treatment be withheld if you are incapacitated. In a last will and testament, you should appoint an executor to make sure that all of your property is distributed as you intended. Under Virginia law, you can appoint anyone over the age of 18 to be your executor or agent. This decision should be discussed with your proposed executor or agent in advance. You want to ensure that they are comfortable accepting the responsibilities of the task. You also want to ensure that the person is responsible enough to accept the responsibility.
Under Virginia law, you are not required to have a lawyer present when filing a last will and testament or a living will. In both cases, however, attorney involvement is highly recommended at the drafting and execution (signing) of these documents. An attorney can also help you resolve any legal disputes ahead of time and ensure that your instructions will be carried out. I have seen many cases in which someone tried to “go it alone” with drafting their own estate documents; however, these individuals ended up costing their loved ones greater expense in legal fees because of poor planning.
Ryan C. Young | Richmond, Virginia Estate Attorney