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December 20, 2022

The Difference Between a Will And a Living Will

As you work through your estate plans, crafting your will and living will could prove to be more confusing than you thought. After all, it is not unusual for Missourians to use living will and will interchangeably. 

However, there are stark differences between wills and living wills that you should be aware of as you work with your estate planning lawyer to draft your estate plans and make important medical and financial decisions for your future. 

What Makes a Will Different From a Living Will?

There is no such thing as a living will in the state of Missouri. However, all of the contents of a will, including durable powers of attorney, healthcare proxies, advance directives, and declarations regarding death-prolonging interventions, can all be drawn up and included as part of your will.

Your will describes not only the medical decisions that should be made but how your estate should be handled as well. This includes how your finances will be spent, which assets will go to specific beneficiaries, whether any gifts will be left to charitable organizations or nonprofits, guardianship of your minor children, and who should act as the executor of your will.

Under Missouri law, wills must go through the probate process before heirs can receive their assets and distributions. However, the contents of a “living will” will only be used by medical professionals and healthcare providers to determine how to best approach your medical treatment and care.

How Long Does a Will Last?

Wills are legally binding documents that are in place until the contents have been executed by the administrator of the decedent’s estate. This means the will will be active and in place until all necessary assets have been transferred, outstanding debts have been handled, and the other details within the will have been carried out as required by the executor of the decedent’s estate.

Costs Of a Will

The amount it will cost to draw up a will can vary widely depending on your personal financial situation, the complexity of your will, and other important details. You can find out more about how much it might cost to get your will drawn up after discussing your needs with your estate planning attorney in Missouri.

What Is a Living Will?

A living will, also known as an advance directive, is a document that describes the medical decisions you would make despite not being capable of doing so yourself. Generally, this includes important medical decisions, including:

  • Treatment you should receive if you develop cognitive impairments
  • Extraordinary measures to be taken if you lose consciousness
  • Whether you want to undergo surgery if the potential complications are life-threatening
  • Whether you consent to blood transfusions
  • Whether you are an organ donor
  • Other types of medical treatment, such as use of pain medications or dialysis

Your living will should appoint a healthcare power of attorney who is responsible for consenting to medical treatment and important medical decisions on your behalf. For example, if you spoke with your healthcare power of attorney and determined that the prolonged use of artificial measures should not be taken, your healthcare power of attorney would then be responsible for ensuring a do not resuscitate (DNR) order was followed as part of your advance directive.

How Long Does a Living Will Last?

Your living will can remain in effect until you pass away. As soon as your advance directive, health care proxy, and other related documents have been signed, they will take effect, and your agent will be responsible for making important decisions on your behalf if you become unable to do so. However, once you pass away, your agent no longer has the same responsibilities or duties.

Costs Of a Living Will

Drawing up the contents of a living will in Missouri can cost thousands of dollars. However, the more complicated your advance directives and power of attorney details are, the more you can expect to spend in crafting your estate plans. Fortunately, the costs of having a living will often pay for itself with your peace of mind alone.

How to Create Your Living Will

If you are interested in creating your own living will, you can start off by considering what your preferred medical decisions are. You can go over some of the most common types of decisions that may need to be made with your estate planning lawyer to determine which options are the best fit for you personally and financially. Your lawyer will be sure to include these decisions in detail as part of your advance directive.

Next, you will need to assign a medical power of attorney to act as your agent. This will be the party who will be responsible for officially making the decisions as described in your advanced directive. Be sure to discuss your decisions with your medical power of attorney ahead of time so they know what your decisions are and are willing to make these tough choices when you become unable to do so.

Once your living will documents have been drafted, you can sign and date them, and get your documents notarized to prevent issues surrounding the validity of your living will in court. Then, make sure to store them in a safe place so your agent, healthcare providers, friends, and family have access to the information they need when they need it most.

Does a Living Will Need to Be Notarized?

Missouri law does not require will to be notarized before becoming legally binding. However, if you are hoping to speed up the probate process, get your well notarized so it will be considered “self proving”.

What Makes a Living Will Invalid?

There are many situations in which a will could be considered invalid. Anytime a will is created under the pretense of undue influence or fraud, a will can be declared invalid. Some of the more common situations in which a well could be invalidated include:

  • Failure to have witnesses to the signing of your will and attest to your competency
  • Non-family caregivers forcing you to make them a beneficiary or leave them in inheritance 
  • Failure to destroy old copies of your will
  • Attempting to create a holographic will
  • Lack of state will provisions
  • Lack of mental capacity to create the will

If you are unsure whether your living will contents are active or valid, you can find out by discussing it with your estate planning attorney in Missouri.

Where to Store Your Living Will and Will Documents 

Once your will and other relevant documents have been drawn up and signed, it is important to ensure that your healthcare providers, durable power of attorney, and other close friends and family members have copies of you or documents in a safe place, such as a fire or waterproof safe. However, you should not use a safety deposit box, as these can be difficult to access once you pass away.

Get in Touch With an Estate Planning Attorney for Help Today

You should have both a will and a living will in place to ensure all of your financial and medical decisions are carefully outlined, assets have been assigned to beneficiaries as you wish, and your estate plans are carried out as you hoped upon your passing.

Work with a dedicated Missouri estate planning lawyer at The Law Office of David S. Schleiffarth, LLC to get your living will and will crafted. You can start working on your estate plans as soon as today by calling our office or filling out our convenient contact form to schedule your initial consultation.

This article represents the opinion of the author and is intended for educational purposes. This article does not constitute legal advice, nor does it create an attorney-client relationship. One should always consult with an experienced attorney before making estate planning decisions.

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