Will and Last Testament Attorney in Auburn, AL
For those who are creating an estate plan in Alabama, two documents may be referenced that have similar names but are actually quite different: a last will and testament (also referred to as just a ‘will’), and a living will. As you navigate your estate plan and the many documents that comprise it, working with an experienced attorney can be extremely useful, and can protect your best interests.
At the law office of Haygood, Cleveland, Pierce, Thompson & Short, LLP, our Alabama estate planning lawyers are ready to sit down with you to discuss the future of your estate today, as well as assist you in understanding the various documents that are part of a comprehensive estate plan, including wills and living wills.
What’s the Difference Between a Will and a Living Will?
When you think of a will, a last will and testament is likely what comes to mind. This document is the legal tool that is used to communicate a person’s final wishes pertaining to their funeral and burial services, who they want to administer their estate, how debts should be paid, and to whom assets should be passed. A will is often considered the foundation of an estate plan. It should be noted that when a person dies without a will, their estate will be divided per the rules of intestate succession; as such, a will is very important for ensuring that assets are divided per a decedent’s wishes.
A living will, on the other hand, has nothing to do with a last will and testament, despite its name. A living will–which is also referred to as an advance directive–is a document that outlines the type of medical care that a person wishes to receive prior to death. Living wills are referenced when a person is so ill and incapacitated that they cannot express their wishes verbally.
Elements of a Last Will and Testament vs. Living Will
The above provides a basic definition for both a last will and testament and a living will. Now, consider the following about the specific provisions and matters that each can address.
Last Will and Testament
Again, a will is used to specify, primarily, how assets should be divided upon a person’s death. In addition to this, a will can be used to:
- Provide specific directions for administering an estate, including naming an executor of the estate;
- Provide clear guidance regarding the deceased’s preferences for disposal of their body, funeral, etc.;
- Leave a business to heirs or another party;
- Provide clear language for how debts are to be paid;
- Name a guardian for any minor children (or pets), making a will one of the most important documents for parents of minor children;
- Outline care for any dependents, including disabled adults; and
- Leave certain parties out of the will.
A living will, or advance health care directive, cannot be used to do any of the things that a last will and testament (will) can do. In fact, living wills are only used to address medical and palliative care. To be sure, a living will can be used to:
- Specify whether or not the individual wants life-saving treatment, such as a feeding tube;
- Whether or not the individual wishes to donate their organs and tissues upon death;
- Whether or not the individual wants to receive pain-alleviating medical up until the point of death;
- What actions should be taken in the event that the individual is not exhibiting signs of brain activity; and
- Which procedures, if any, an individual wants to be undertaken in the event that they are unconscious or otherwise incapable of expressing their healthcare wishes.
Note that a living will does not specify who should make decisions on the incapacitated person’s behalf should an issue not be addressed within the living will. The document that does allow for this is called a power of attorney, and is often used in conjunction with a living will to create a more comprehensive estate plan.
Creating a Will and Advance Directive in Alabama
In order to make a will in the state of Alabama, the testator (the person who creates the will) must be at least 18 years of age. A person must be of a “sound mind” in order to create a valid will. In addition, the will must be signed by the testator in the presence of two witnesses, who also must sign the will. The will must be written; oral wills are not recognized in Alabama. Note that a will can be revoked or modified at a later date.
The state of Alabama offers a standard form that can be used to create an advance directive and name a healthcare proxy (healthcare power of attorney). According to the language of this form, a person must be of sound mind and at least 19 years of age in order to create these documents. A signature and the signature of two witnesses are required. The signature of the named healthcare proxy (if relevant) is also necessary.
What Happens if I Don’t Have a Last Will and Testament or a Living Will?
While creating a last will and testament or a living will may not feel like a top priority, especially if you are healthy and well, the consequences of dying without these documents in place can be grave. While it may seem morbid, it is impossible to predict when you may have an accident or a healthcare emergency; having an estate plan in place can provide peace of mind. If you die without a will, for example, you will have no control over how your assets are divided – instead, intestate laws will govern who gets what.
Our Alabama Estate Planning Lawyers Are Here to Help
At the office of Haygood, Cleveland, Pierce, Thompson & Short, LLP, our Alabama estate planning lawyers know how important having a solid estate plan in place is. We can guide you through wills and advance directives and help you to create documents that protect the interests of you and your loved ones. We are also here to assist you in modifying these documents should something in your life change.
To learn more, please reach out to our team by phone at (334) 821-3892, in person, or by sending us a confidential message online.