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A will by any other name … no, sorry they are actually not the same

by ROBERT J. GREEN/Kootenai Law Group
| April 7, 2024 1:00 AM

Because attorneys seem to have a hard time making anything easy, several estate planning documents have similar and easy to confuse names, which adds confusion to an already complicated topic. Estate planning legal matters are already confusing enough, so it certainly does not help to have similar names for related but completely different documents. Today, let’s try to clear things up a bit with a review of the differences between a “Living Will” and a “Living Trust.” 

A Living Will is NOT the same thing as a Last Will and Testament (where you would leave instructions regarding what should happen to your possessions and assets when you die). A Living Will is used while you are still alive (hence the name), not after your death. A Living Will has a very narrow set of circumstances to which it applies. Specifically, a Living Will is a document used to state what medical treatments you do or do not want administered to you if you are terminally ill and your death is imminent, or you are in what is called a “persistent vegetative state” In very basic/non-medical terms, this means that your body is alive, but your brain is not functioning. (Speak to your physician for a much better understanding of this condition). 

If you are under one of these circumstances, a Living Will determines whether you will receive artificial hydration and nutrition (intravenous or tubular for example), mechanical ventilation of the lungs, and any other procedure used by medical professionals. A Living Will can work in connection with another document, called a Physician’s Order for Scope of Treatment (POST) regarding all of these options to have or not have such medical treatments under these circumstances. A POST document is obtained from your doctor’s office and is a document you will fill out along with your doctor after discussing these matters. In Idaho you can have both a POST and a Living Will. 

Despite their similar names, a Living Will and a Living Trust are very different legal documents. A Living Trust is a document used in estate planning when a person is trying to avoid the need for their estate to go through a court-controlled process called “Probate.” Most Living Trusts are also what we call “Revocable” trusts — meaning the trust document can be amended by you over time if you want to change it and can even be revoked altogether if you want to get rid of it. A Living Trust will name someone to be in charge of your estate (a “Trustee”) and will direct who will receive what from your estate after your death. If this document sounds similar to a “Last Will and Testament” that is because they are very similar in the sense that they both place someone in charge of your estate and direct where your assets will go after your death. The primary difference between a Living Trust and a Last Will and Testament is that a Living Trust can be used without the involvement of Probate Court, but a Last Will and Testament typically has to go through the probate process after your death. Note, however, that neither a Living Trust, nor a Last Will and Testament are the same thing as the Living Will which I described above. These are three distinct documents used for different purposes in an estate plan. 

Clear as mud?

If you have questions, my law firm is currently offering free in-person, telephonic, or electronic consultations concerning creating or reviewing estate planning documents.

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Robert J. Green is an Elder Law, Trust, Estate, Probate, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Robert at 208-765-6555, Robert@KootenaiLaw.com, or visit www.KootenaiLaw.com

This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.