We Explain the Difference Between Wills and Living Wills

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A Will is a legal document which clearly states how a person, called the Testator  would like certain matters taken care of upon their death. One of the main issues that is generally outlined in a Will is to whom and how the transfer of the decedent’s property should be handled. A Will also sets forth wishes for how the decedent’s minor children are to be cared for if there is no living custodial parent.  The birth of children is often the impetus for people calling us to make a Will so that they can name guardians for their children in case of tragedy.  Certainly, the last thing children suddenly deprived of both parents needs is dueling grandparents and a judge who might place them into child care until the issue is resolved.

A will can be an adjunct to a Living Trust or can stand on its own, often creating Testamentary Trusts which are available if needed to settle the estate, especially where minors are involved, but also spendthrift provisions to limit access to the funds by some of the heirs who may lack financial prowess to a reasonable amount on a regular basis.

A Living Will is a legal document, but which mostly deals with the health of the person who executes it.   It is often referred to as a Durable Power of Attorney for Healthcare, whereby a person states the type and extent of medical treatment he or she wishes to have, (e.g., the extreme case of being kept alive by machines even if the doctor and agent both believe the process to be irreversible).  This is activated only when you are unable to communicate your wishes or making your own medical decisions, due to mental disease or incapacitation.   Many hospitals now require the execution of this document prior to performing surgery.  A mishap with the anesthetic or other medical complication may interfere with your ability to communicate your wishes.

The Will and the Living Will are made for completely different purposes: the former is to address who will receive your assets upon your death and care for your children, and, often enough, your pets.   The latter is to make clear how you want your health care to be performed if at some point you are not capable of making or informing your health care providers of your wishes.

Format: The format of a Will or the living Will generally varies from one state to other. However, in most cases, both the kinds of Wills are only accepted in the written form. There are just a few states that accept oral Wills, but generally speaking, Wills must be in a written form. The Will should contain your address and name and must be signed in the presence of at least 2 witnesses. You should also name a person to be your executor and an alternate in case your first choice cannot or will not take the position.  

The execution of the Will must be precise; we had a case where the lawyer allowed the witnesses to sign the Will in a different room after the Testator signed it.   The court ruled that because the person signing the Will did not see the Witnesses sign it (a statutory rule in Illinois), the Will was invalid.  Don’t try to execute the Will without legal assistance.  A computer-generated Will which is not validly executed may well be tossed out of court.   When the entities that sell computer-generated Wills tell you at the conclusion to seek legal help to ensure proper execution, it is not just a Disclaimer; they know that the proper Execution of the Will is just as important as its content.

A Living Will should clearly mention the kind and extent of treatment you desire. Be as specific as possible about what you want the doctors to do when you are unable to make these types of important, life-changing decisions for yourself. You may want to consider mentioning under what circumstances extenuating life-saving treatments should or should not be used in order to save your family members the difficult task of having to make those decisions on your behalf. You are naming an agent who will address the wishes in your health-care instrument and, in consultation with your physician, determine what your wishes would be.

Process: Wills are public documents. All Wills must be filed in the county of residence within 30 days of death.   Not all Wills have to go through probate. The probate court will make sure that your Will is properly settled.   In Illinois, if your assets do not exceed $100,000.00, the Executor or Administrator may utilize a Small Estates Affidavit.   Illinois law recently changed making this a less attractive alternative because, clearly at the behest of creditors, the Statute added a provision whereby  the person who executes the Affidavit states that all claims and creditors have been satisfied and if that is not true, that person becomes personally liable to those creditors.   

We are good at what we do because we can help you avoid pitfalls like the above example.  85% of our practice is Probate and most of the remaining 15% is guardianships for the elderly or the incompetent.

Cost: The cost of creating a Will varies dependent upon the complexity of your assets and your situation (e.g. some items in Trusts or Land Trusts) and the lawyer you choose to handle your Will.  Generally, we charge between $500.00 – $900.00 is for the drafting, reviewing, revising and execution of a Will.  

Importance: In the case where a person passes away without a Will in place, the court will interpret the Probate Statutes to decide how the decedent’s property will be divided.

Generally, it is divided between the decedent’s spouse and any children that they or the decedent by a previous marriage or relationship may have had. In the absence of any children or spouse, the property may then be given to the decedent’s next of kin.  In an extreme case, we had an estate divided up among heirs traced back to 1839 Germany, most of whom had never met the deceased woman.   That is why a Will is paramount.  In the course of preparing a Will, the attorney should, with your permission, place in a clause indicating that you do not require your Executor to obtain a surety bond, which can become a major expense because it is based on the size of your estate, and also ask that the Executor be allowed to act independently without court supervision.

Results:   The  Probate process is considered complete when all your property is successfully passed over to everyone you have mentioned in your Will.

Purpose: The purpose of creating a Will is to make sure that your property is successfully passed over to those whom you specifically choose and ensuring that it is treated as you want it to be treated.

The purpose of creating a living Will is to give specific instructions to your family and doctor regarding the kind of treatments you wish to receive if you become incapable of making your own medical decisions.

The Law Offices of David Blocher is a specialty law firm serving Chicago, IL and the surrounding areas specializing in elder law, probate administration, and estate planning services. Our attorneys take a keen interest in each case and offer personalized and attentive services to every client. If you need legal assistance in any of these areas, please feel free to contact us at  (312) 855-4477 or visit our website at http://blocherlaw.wpengine.com.