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What is a Will vs. a Living Will?

A living will and a last will and testament are two critical pieces of an estate plan. Although they might sound the same, they perform very different functions. We always recommend that our clients create both. If you are interested in creating an estate plan, contact Surasky Law Firm. Our Aiken, SC estate planning attorney provides an overview of each type of document and the key considerations with each.

A Last Will and Testament

You use this document to:

Name someone to serve as your personal representative.

This individual will guide your estate through probate after death and pay off your creditors before distributing your estate according to the will.

Identify who will inherit from you.

You can make specific bequests or leave a percentage of your estate to one or more individuals. You might also pour your estate into a trust at death and use the trust to determine who inherits.

Appoint guardians for minor children.

If you and the other parent die, then someone else will raise your children. You can name them in your will.

What happens if you die without a will?

For one, your family might squabble with each other, and several people might ask the probate court to appoint them to serve as representatives. Any fight in probate court threatens to drain the value of your estate.

Your young children might also end up in foster care, at least temporarily, or they could end up with family members who are not ideally suited to raising young children. Also, your spouse or children will probably inherit everything if you die without a will. Some people won’t mind that result, but others might want to cut out one or more children.

Living Will

This is a very different document. Its purpose is to determine ahead of time what medical care you want in the event you are permanently incapacitated or terminally ill.

As a rule, any adult can decline medical care. If you get a cancer diagnosis, for example, you can decline to treat it. That’s your constitutional right in the United States.

But what happens when you are permanently incapacitated? For example, some people come down with dementia and can no longer communicate or understand what is happening. Other people slip into a permanent coma due to a heart attack or stroke. At this point, you lose the ability to speak for yourself.

This is where a living will comes in. You can decide ahead of time what medical care you will want in these end-of-life situations, including:

  • Blood transfusions

  • Pain management

  • Feeding tubes

  • Ventilators

  • Dialysis

  • CPR

Some people want all possible life-support treatment. Others don’t want to be kept on life support indefinitely. These are personal, individual decisions, and there is no right or wrong choice. A living will that works for your sister or spouse might not work for you. Consult our firm to talk about what care you’d like.

What is the Health Care Power of Attorney?

We usually also include a health care power of attorney to appoint someone to communicate with doctors in the event you are incapacitated. You can nominate someone to serve as your agent. Quite a bit of care should be given to picking an appropriate person. Some people automatically choose their spouse or eldest child—but those options might not be best for you.

We work closely with our clients to create appropriate advance directives that will withstand legal scrutiny.

Should You Have a Will or Living Will?

You should have both. As explained above, they serve different functions. You cannot decide how to leave property with a living will, which is used only in the medical care context. Similarly, you can’t use a last will and testament to make medical decisions. The personal representative you appoint to handle your estate cannot make medical decisions for you. In fact, the personal representative has no power over your estate until you die.

Does a Young Person Need a Living Will?

Yes. You might think you aren’t at risk of an Alzheimer’s diagnosis any time soon. However, you could become incapacitated due to a serious illness (like cancer) or a devastating accident. A living will goes into effect when you are terminally ill or permanently unconscious.

Altering or Amending a Living Will or Last Will and Testament

Young people shouldn’t fear creating these documents. You can change them later if you want. You might change your mind about what kind of medical care you want in the event you are terminally ill. That’s fine. We can revise a living will.

You can always amend a last will and testament, too. You might create a will at 30 and then get married and have children. We can amend your will with a codicil.

Why You Should Meet with an Attorney

South Carolina has created statutory forms that people can use to create a living will, called a Declaration of Desire for Natural Death. You might find the form, fill it out, and think you are done. However, there are definite benefits to working with a lawyer to create a solid living will.

In particular, we help clients think through who they want to serve as their healthcare agent. This is a critical job. You might have no family left, or you are estranged from relatives. We talk with our clients about appropriate choices. Ideally, you want someone who understands your values and lives near you. They will most readily perform the job well.

Any template you find for a last will and testament might be invalid in South Carolina. Creating an invalid estate plan defeats the purpose of trying to plan for the future. See our blog on estate planning here.

Call Surasky Law to Speak with Our Lawyer

Many of our clients report relief at taking charge of the future by creating an estate plan. Dying with dignity is an important goal for many people. There’s no reason to lose control of your medical care simply because you are terminally ill or incapacitated. Please call our law firm today if you have any questions.


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