What is a living will?

By Allstate

Last updated: January 1

A living will is a legal document that explains your preferred medical treatments if you’re permanently ill or dying, according to the National Institutes of Health’s (NIH) MedlinePlus website. It’s especially useful if your medical condition prevents you from speaking for yourself.

It’s often called an advance directive, says the NIH, and the items typically touch on whether you wish to accept or reject medical care. This can include whether you approve the use of breathing machines or if you want to be an organ donor.

While thinking about end-of-life care decisions may be challenging, the National Cancer Institute (NCI) note that it’s best to create a living will while you’re still healthy, if possible. Accidents or unexpected illness may strike suddenly. Otherwise healthy people may be unable to communicate their wishes as a result. Involving your family, friends and physicians in your decisions is important because it makes them aware of your wishes.

It’s good to remember that health changes can affect us all — regardless of age. Even younger family members can benefit by planning for unexpected or critical health changes. It’s never too early to plan for your future needs.

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Preparing a living will

Laws regarding living wills and other advance directives vary by state, but you can download state-specific forms and instructions through the National Palliative Care and Hospice Organization (NPCHO). These forms can only be completed if you’re 18 years or older, says the NPCHO. In most cases they require a minimum of two witnesses. Although a lawyer isn’t needed to complete a living will, they may be helpful if you have any questions about the document and its legal implications. You may also create a living will with either a form provided by your doctor or by using legal software or online tools, says FamilyDoctor.org.

Once you’ve completed a living will, the NCI suggests you store it in a safe location that is easy to get to for a trusted family member or friend. You might also want to provide an additional copy to your doctor or health care team. Finally, consider keeping a card in your wallet that describes the existence and location of your living will or other advance directives.

It’s important to note that a living will doesn’t legally allow you to choose someone else to make medical decisions for you. That’s where a durable power of attorney comes in.

What is a durable power of attorney?

A durable power of attorney allows you to choose a loved one to make medical decisions on your behalf if you’re incapacitated, according National Institute on Aging (NIA). According to the National Institute on Aging, a durable power of attorney document can include the following types of decisions:

  • Which medical treatments should be used or not used (such as treatments for acute or chronic conditions, life support or resuscitation and end-of-life care)
  • Money-management decisions, including managing investments and retirement accounts
  • Managing and making gifts and donations
  • Acting on your behalf in a court of law, or official appearances
  • Paying your mortgage, car payment or other financial obligations
  • Managing Social Security, Medicare, pensions or any other benefits to which you’re entitled
  • Serving on your behalf for any other items you specify

Should you consider making a will?

Now that you’re familiar with how a living will works – what about making a last will and testament (commonly referred to as a “will”)? Having a will, in addition to a living will, can help you and your family protect what matters most after you have passed away. Consider these four important reasons for making a will:

  1. You decide who executes your estate
  2. You decide who will inherit your estate
  3. You decide who doesn’t inherit your estate
  4. You decide who cares for minor children & manages trusts

Decide who executes your estate

Creating a will and appointing a trusted executor of your choice helps ensure your estate is managed according to your wishes. It may also help minimize court involvement, says the American Bar Association (ABA). If you pass away without a will (i.e., dying "intestate"), your state will determine how to split up your estate, according to Thomson Reuters' FindLaw. This includes distributing your possessions and property and appointing a guardian for any minor children.

FindLaw says the executor of a will can be any trusted person, such as a close friend or family member. But, don't forget to check that your appointed executor is willing and able to serve in that capacity. They are typically responsible for ensuring all your affairs are in order and executed to your wishes, are responsible for paying off bills and closing any accounts, according to FindLaw. Depending on the size and complexity of your estate, you may want to appoint a lawyer or financial professional who can help manage complex finances or inheritance issues.

Decide who will inherit your estate

A will makes clear which persons or organizations (such as charities or universities) receive all or part of your property when you die, says ABA. This includes homes, vehicles, financial assets and any other personal property you wish to pass on.

You should also keep in mind that some states have community property laws governing spousal inheritance. In these states, a surviving spouse would be entitled to a certain amount of your estate no matter how much you specifically designate in your will, according to ABA. Remember to consult with a knowledgeable professional as part of your estate planning to help you understand any specific laws in your state.

Decide who doesn’t inherit your estate

A will can also be used to disinherit someone who may otherwise be entitled to receive a portion of your estate, says FindLaw. If you don't have a will, all or parts of your estate may end up in the hands of someone you intended to disinherit (such as a relative with whom you've fallen out of touch). When creating a will, remember to check your state's laws to understand who may be legally entitled to a portion of your estate.

You may want to review your will from time to time and make updates when you experience life changes (such as after the birth of a child), recommends The Balance. You can use these opportunities to specify who should receive specific assets based on your new circumstances.

Decide who cares for minor children & manages trusts

By creating a will, you can appoint a guardian to care for your minor children, says ABA. If you do not have a will that outlines this, a court will usually appoint an official guardian. This is why it is crucial to select a trusted guardian for your kids. And, if anyone listed as a guardian or executor in your will passes away, it's important to update your will to ensure your wishes are carried out.

Keep in mind that children under the age of 18 cannot manage inherited property on their own, says HG.org. A will can also be used to create a trust for your minor children and appoint a trustee who will care for their inheritance until they reach adulthood.

Creating a will has numerous benefits for you and your family, and it doesn't have to be difficult. Though using an attorney is helpful when creating a will, you may also be able to do it yourself by using online software solutions to help you craft a legally sound document. Whichever method you choose, creating a will may offer peace of mind that your loved ones will be cared for as you intended.