My life changed in an instant in 2009 when my husband, Seth, was in an automobile accident, which left him incapacitated with a traumatic brain injury. This life-altering experience led me to start the 820 Foundation as a way to educate, inspire, and empower individuals to see end-of-life planning as a part of life. My hope is to use this tragedy to help others avoid the pitfalls of putting emergency planning on the back burner.

So many of us are familiar with a last will and testament, whether it’s from movies, real-life experience, or having heard it in passing somewhere. But did you know that there are different types of wills? And that you should have both? 

 

What is a Last Will? 

Last wills, often just referred to as wills, are the most common type of life planning document. A last will is a legal document that coordinates the distribution of your assets after death and can nominate guardians for minor children in the event of your death. Last wills should be updated frequently as your life changes (check out our other blog post for all the important milestones that should remind you to review your will here), as they protect all documented assets and wishes after you pass. 

 

What is a Living Will? 

Living wills instead outline your wishes in the event that you are alive but incapacitated. Living wills cover many of the same assets and demands as a last will, but they include medical and legal directives in case you’re unable to act for yourself, and they allow you to name a trusted person to act on your behalf. 

 

Why should you have both? 

Last wills and living wills both serve different purposes, so it’s ideal to cover all your bases in the event of an emergency, accident, or death. While it may seem redundant, having both documents and reviewing them regularly ensures that you, your loved ones, and any assets you have are protected. 

 

What happens if you have a Last Will, but not a Living Will? 

A Last Will only comes into effect once an individual has passed away, so without a living will, your wishes may not be followed if incapacitated but still alive. Essentially, a last will cannot function as both. 

 

What happens if you have a Living will, but not a Last Will? 

While wills are not legally required, dying without a will means that decisions on asset distribution must follow intestacy laws, which may not coincide with the decedent’s wishes. To make sure that your wishes are recognized and followed in life and death, it’s recommended to have both when possible! 

 

Intestacy: Dying Without a Will

Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. Intestacy laws differ from state to state. The Uniform Probate Code (the Code) serves as the starting point for many states’ laws. Nevertheless, the laws of different states can vary greatly from each other and from the Code itself.

If you die without a will (die “intestate”), you cannot choose who will inherit your money, real estate, property, belongings, insurance and retirement benefits (your “estate”). Instead, your estate will be divided according to state law. Without a will, your siblings and grandchildren are not likely to inherit anything from you.

 

We are not providing legal advice. All estate planning varies from state to state. Please seek an attorney in your state for specific information and details.