Like most people, you probably have a fairly good idea of what a Last Will and Testament is and the purpose it serves within an estate plan. You may also have heard of a “Living Will,” but you may not be certain what a Living Will does nor whether you should have one. Knowing the difference between a Will and a Living Will is crucial to deciding if you need either, or both, in your Illinois estate plan.
Do I Need a Will, a Living Will, or Both?
Although the terms are frequently used interchangeably, they do not refer to the same estate planning document. You may realize that a Will typically serves as the foundation of a simple estate plan; however, do you need to create a Last Will and Testament or a Living Will? You may decide that both should be part of your comprehensive estate plan after you learn more about how each will fit into that plan.
Last Will and Testament Basics
A Last Will and Testament is a legal document that communicates a person’s final wishes pertaining to possessions and dependents. Your Will allows you to make both specific and general gifts. For example, you might make specific gifts of your art collection along with stock in Apple to a designated beneficiary. You could also gift a percentage of your estate to your son. For example, you could gift half of your entire estate to your daughter. Your Will is also where you will appoint someone to be the Executor of your estate. Your Executor plays a vital role in the probate of your estate after your death. During the probate process, your estate assets are identified, valued, and ultimately transferred to the new owners. In the meantime, however, your Executor must notify creditors, pay claims, defend your estate against challenges, and pay and state and/or federal gift and estate taxes due from the estate. Choosing the right person as Executor will go a long way toward ensuring an efficient and effective probate process. Finally, your Last Will and Testament provides you with the only official opportunity you will have to nominate a Guardian for your minor children in the event one is ever needed after you are gone. Although they all accomplish the same basic objectives outlined above, there are several different types of Wills from which you might choose, including:
Living Will Basics
The most noticeable, and important, difference between a Last Will and Testament and a Living Will is that a Will activates upon your death whereas the terms of a Living Will apply during your lifetime. A Living Will is a type of advance directive. An advanced directive, in turn, is a legal document that allows you to make health care related decisions now in the event you cannot make them for yourself at a later date. Each state decides what type of advanced directives will be recognized in that state; although, most states recognize some version of a Living Will as well as a Power of Attorney for Health Care. The State of Illinois is among the states that offer both of these basic advance directives.
In Illinois, a Living Will is conveniently referred to as simply an Illinois Living Will. With this type of advance directive, you are able to state your wishes regarding your desire to prolong your life in the event that you are unable to express your wishes at some later point in your life. Specifically, an Illinois Living Will allows you to direct that, if you are suffering from a terminal condition, death delaying procedures will not be utilized to prolong your life. Unlike many other states have fairly broad Living Wills, the Illinois Living Will is limited to this instruction and is not effective if you have an effective Power of Attorney for Health Care. If you feel strongly about not prolonging your life in the event you have a terminal condition, an Illinois Living Will can ensure that those wishes are honored; however, you should not combine it with a Power of Attorney for Health Care because having a POA for Health Care effectively negates your Living Will.
Contact Illinois Estate Planning Attorneys
For additional information, please join us for an upcoming FREE seminar. If you have additional questions or concerns regarding the difference between a Will and Living Will in the State of Illinois, contact the experienced estate planning attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.
Dean R. Hedeker
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