Welcome to the Kazi Law Firm! We are a boutique law firm steeped in Texas tradition personifying the warmth and congeniality consistent with southern hospitality. We believe in preserving integrity and professionalism with true Texan charm, staying true to our roots, while providing essential, affordable legal services to all. Located just north of Dallas, Texas in the rapidly growing suburb of Frisco; the Kazi Law Firm concentrates on contracts drafting and review, wills & estate planning, real estate law, landlord, tenant, mediation, and general business law needs.
Often, clients ask us what the difference is between a Will and a Living Will? They both sound the same and both are estate planning tools, right? Well, shockingly enough, despite the similarities in names, they are quite different from each other. Before we delve into specifics, let’s discuss the basic definitions of both documents.
A Will is sometimes also called the Last Will and Testament is a legal document that specifies how a person’s estate should be handled after that person’s death. For example, whether their property and assets will be inherited by all children equally, or by certain children or relatives, or donated to charity. A Will only gets executed after the person is deceased.
On the contrary, a Living Will determines healthcare measures that will be taken or avoided when the person is alive but in a position where they are unable to make healthcare decisions for themselves or to communicate those decisions. For example, if you were in a coma or incapacitated in some other way, rendering you unable to communicate, your Living Will would essentially “speak for you.”
Living Will aka Medical Directive
A Living Will, also known as a Medical Directive, allows you to state your preferences for certain end-of-life decisions. You can give specific instructions on how you want to be treated if you’re incapacitated or in the end-stage of an illness.
For example, you can specifically state in writing that you do not want to be connected to life support if you are in a coma. You could also specify that you do want oral hydration and nutrition through a feeding tube. Other examples include a situation where you are in the final stage of a terminal condition, such as cancer or AIDS, and you expressly state that you do not want your life to be unnecessarily prolonged with artificial measures. Needless to say, there are no right or wrong answers in such situations. The most crucial aspect is letting your loved ones know what you want so that they can ensure your wishes are following accordingly.
Please keep in mind that a Living Will is not the same as a “Do Not Resuscitate” (DNR) Order. For example, if you are severely injured in a car accident, EMTs will do whatever they can to revive you and keep you alive, even if your Living Will says that you don’t want life support. A DNR Order means precisely what it says: that you do not want to be resuscitated.
Regardless of what your Living Will says, physicians will do whatever they can medically to heal and make you whole again. After all, physicians are bound by the Hippocratic Oath “to do no harm.” However, the Living Will only come up if you are not going to recover. Talk to your physician for more information about DNRs. Additionally, please keep in mind that a Living Will is effective as soon as you sign it, unlike a Will. You may change your Living Will at any time as long as you have the mental capacity to do so.
Will & Last Testament
A Will provides for the distribution of certain property owned by you at the time of your death, and generally, you may dispose of such property in any manner you choose. Your Will does not govern the disposition of your property that is controlled by beneficiary designations or by titling, which passes outside probate. Such assets include property titled in joint names with rights of survivorship, payable on death accounts, life insurance policies, retirement plans, and 401k accounts, and employee death benefits. These assets pass automatically at death to the named person, and your Will is not applicable to them unless they are payable to your estate by the terms of the beneficiary designations for them.
Wills can be of various degrees of complexity and can be utilized to achieve a wide range of family and tax objectives. If a Will provides for the outright distribution of assets, it is sometimes characterized as a Simple Will. If the will creates one or more trusts upon your death, the Will is often called a Testamentary Trust Will.
Aside from providing for the intended disposition of your property upon your death, a number of other critical objectives may be accomplished in your Will:
- You may designate a guardian for your minor child or children if you are the surviving parent and thereby minimize court involvement in the care of your child.
- You may designate an executor (personal representative) of your estate in your Will, and eliminate their need for a bond.
- You may choose to provide for persons whom the state’s intestacy laws would not otherwise benefit, such as stepchildren, godchildren, friends or charities.
- If you are acting as the custodian of assets of a child or grandchild under the Uniform Gift (or Transfers) to Minors Act (often referred to by their acronyms, UGMA or UTMA), you may designate your successor custodian and avoid the expense of a court appointment.
What Happens If I Die Without a Will?
If you die intestate (without a Will), your state’s laws of descent and distribution will determine who receives your property by default. These laws vary from state to state, but typically the distribution would be to your spouse and children, or if none, to other family members.
A state’s plan often reflects the legislature’s guess as to how most people would dispose of their estates and builds in protections for certain beneficiaries, particularly minor children. That plan may or may not reflect your actual wishes, and some of the built-in protections may not be necessary for a harmonious family setting. A Will allows you to alter the state’s default plan to suit your personal preferences. It also permits you to exercise control over a myriad of personal decisions that broad and general state default provisions cannot address.
References:
- American Bar Association
- Mayo Clinic: Living wills and advance directives for medical decisions
- Harvard Medical School: Living wills and health care proxies
- National Hospice and Palliative Care Organization
We recommend that clients have both documents, a Living Will and Will and Last Testament. Please contact the Kazi Law Firm for your free, no-obligation consultation to discuss your estate planning needs.
I built my law practice on the premise of being a life raft in a sea of sharks. I want to be an advocate for those that have been wronged and are too intimidated to seek help. My firm is here to explore your options, guide you through your legal journey, and give you that safe space to ask questions! There’s no such thing as a stupid question…Only the ones you don’t ask. So, my question to my clients is not “do you have any questions?” But rather “what questions do you have?”
As always, the Kazi Law Firm is standing by to help you in your time of need. Don’t hesitate to contact us today. We specialize in real estate law, landlord-tenant disputes, immigration, and wills & estate planning. Family is at the core of our practice. Just as we treat our family with respect and understanding, we treat yours. Come join the Kazi Law Firm family today!
Why swim alone in shark-infested waters when you don’t need to?
