At some point in your estate planning, you should come across the terms last will and testament and living will. Understandably, people get these terms confused because both make reference to a will. The reality is that a will and a living will accomplish two completely separate purposes. Hawkins Elder Law breaks down the key differences between the two.
What Is A Will?
When you make a will, (also known as a last will and testament) you decide who are the beneficiaries of all or a portion of your property when you die. By property, this means the assets in your estate at your death. If you die with a will, you die testate. If you die without one, you die intestate. A critical difference between the two is that by dying without a will, the Indiana probate court will determine your heirs and provide them with your assets according to a scheme. In other words, if you die without a will, you do not control how your estate is divided up. So, if you have any property whose disposition you aim to control, then you should get a will.
Assets in your estate could include things like your home, personal bank account, investment account with no named beneficiaries, artwork, jewelry collection, Indianapolis Colts memorabilia, antiques and vehicles. Some assets that don’t generally pass through a will include financial accounts in which beneficiaries are named, and trust assets or other property which is automatically transferred by law to others at your death.
It is also commonplace in estate planning for wills to direct that all estate assets flow into a trust to be managed and distributed according to the trust’s terms. This type of will is known as a pour-over will.
Also, with a will, you could name certain people as guardians of your minor children. By doing this, you could avoid costly guardianship proceedings and family strife over the care of your children.
A will contains specific information regarding who will carry out your instructions. This person is known as the executor, executrix, or the personal representative. Your executor has a fiduciary responsibility to follow your instructions.
In Indiana, for you to make a will, then you must be 18 and of sound mind (e.g. not incompetent). Your will must be in writing and signed and dated by you in the presence of two witnesses. Those witnesses also have to sign and date the will. If you want to revoke or change your will, you can destroy it or make a new one following the same formalities.
Note that wills become part of the public record.
What Is A Living Will?
A living will is an advanced healthcare directive. It contains instructions on your care and treatment in end of life scenarios in which you are unable to make or otherwise communicate healthcare decisions for yourself. It allows you to forego life-sustaining treatment if your attending physician certifies in writing that: (1) you have an incurable injury, disease, or illness; (2) your death will occur within a short time; and (3) the use of life prolonging procedures would serve only to artificially prolong the dying process.
More particularly, with a living will, you typically indicate whether or not you wish to have artificially supplied nutrition and hydration if the effort to sustain your life is excessively burdensome to you or otherwise futile. You might alternatively indicate in your living will that you choose to make no decision about these things and would rather your health care representative or your attorney-in-fact (who has healthcare powers) be the one to decide.
By stating your choices in this type of advanced directive, you are able to help your family and medical professionals know how to proceed with your medical care.
For you to make a living will, you must be 18 and of sound mind. Your living will must be in writing and it has to be signed and dated by you and by two witnesses.
A weakness of the Indiana living will law is that it lacks forms and procedures for attending physicians to certify the three requirements for a living will’s effectiveness. That is why the lawyers at Hawkins Elder Law recommend that clients establish appointments of healthcare representatives instead of using living wills.
Hiring An Attorney
Experience and legal scholarship are essential attributes for elder law and estate planning attorneys. For almost three decades, Hawkins Elder Law has helped clients make personalized estate plans for managing their personal business and health decisions during health crises and distributing assets after their deaths. The firm’s lawyers also work year-round with their estate, trust, and elder law colleagues to study and propose improvements to the Indiana laws that affect their clients.
About the Authors
Jeff R. Hawkins and Jennifer J. Hawkins co-author this blog with Thomas E. Hynes, a lawyer admitted to practice in Pennsylvania, New Jersey and Florida who has a background in estate planning and elder law. Jeff and Jennifer are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers. They are also active members of the Indiana State Bar Association and the Indiana Chapter of the National Academy of Elder Law Attorneys (NAELA). Jeff is also a member of the Illinois NAELA Chapter.
Jeff is a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation. He is also a member of the Illinois State Bar Association and he served as the 2014-15 President of the Indiana State Bar Association.
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