What’s the difference between a Will and a Living Will?

A Will refers to a Last Will and Testament.  It only goes into effect after one’s death.  It directs how one’s property is to be distributed, since, after all you can’t take it with you.  A Will can also set up Trusts that go into effect upon one’s death and even name guardians to care for one’s minor children.  Michael Jackson’s Will, for example, named guardians for his children.  In Colorado, if there is either real estate of any value or over $60,000.00 in personal property (i.e. cars, jewelry, furniture, clothing, etc.), a probate must be opened.  While the probate process in Colorado is not as onerous as in some other states, such as California, it can consume a considerable portion of the assets of the estate.  Probate can also be a public process.  In El Paso County, for example, the probate Court records are currently not available to the public.  However, this could change at any time.  A Trust set up during one’s lifetime can be used to avoid probate, reduce total costs and ensure the process is private.

 A Living Will is only in effect during one’s lifetime.  It lets one choose how long they want to be on life support, if they want tube feeding and even how they wish to be treated while on life support.  A Living Will only comes into play when a person enters a persistent vegetative state.  Consequently, not everyone will use their Living Will.  However, it is vital to have a Living Will just in case.  If Terri Schiavo had one, she would not have had to spend over 15 years on life support (unless she wanted to) while her family battled 14 Florida appeals and 5 Federal cases.       

Each individual has different needs when it comes to Wills, Trusts and Living Wills.  The best way to determine what fits your situation is to speak with an estate attorney.  Please do not hesitate to contact me to get started on your own estate plan.