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What Is The Difference Between A Will And A Living Will?


If you are thinking about making an appointment with a Westchester County estate planning attorney to make important plans for your assets and the well-being of your loved ones when you are gone, you may have done some research into the different types of documents or instruments that you may want to consider. In conducting preliminary research, you might have come across information about wills and about living wills. While these two documents might sound extremely similar to one another, and you might even be assuming that these documents are one and the same, there are actually significant differences between a will and a living will. Indeed, these are two very different types of documents that are used for very distinct purposes.

What is a Will in New York?

A will, which is also known as a “last will and testament,” is a document that is written by a person to say how that person wants their property to be distributed in the event of their death. In a will, a person can state that they want specific and tangible personal assets, as well as intangible assets, to be left to specific parties. Then, when the person who makes the will—known as the testator—passes away, the will can be admitted for probate, and the executor of the estate will be responsible for handling the affairs of the estate, including distributing assets to heirs based on the terms in the will.

There are a number of requirements under New York law for a will to be valid.  The will must be in writing, it must be signed and dated by the testator in the presence of two witnesses, and those witnesses also must sign the document in order for it to be valid. When a person dies without a valid will, that person will have died “intestate.” Accordingly, their estate will be distributed based on the terms of New York intestacy laws.

What is a Living Will in New York?

Unlike a last will and testament, a living will is a very different document and does not have anything to do with leaving assets to heirs. Instead, a living will is one type of “advance directive” under New York law, which allows a person to make decisions about their own health care in the event they become incapacitated and able to voice those decisions for themselves. Advance directives include Health Care Proxy forms (naming a person who can make health care decisions on your behalf), a Do Not Resuscitate Order (also known as a DNR), and living wills.

The living will gives a person the opportunity to provide written instructions about his or her health care decisions, including decisions about any necessary end-of-life care. A living will only takes effect once a person becomes unable to communicate those decisions herself or himself. Living wills should also be signed, and they must provide clear and convincing evidence of a person’s wishes in order to be valid.

Contact a Putnam County Estate Planning Lawyer

Our Putnam County estate planning attorneys can provide you with more information about estate planning, and our firm can work with you to develop both a will and a living will in New York. Contact Meyer & Spencer, PC today for more information.



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