Living Will... What's the Difference?
By Phil Craig
"My mom told me she
has a living will. That way she's going to avoid
I can't tell you how many times I've heard this when a
new person finds out I was a living trust lawyer.
They go on to say, "She got one of those forms at
the seniors' center. You know, the one she can fill out
herself. They even witnessed it for her."
I hate it when this comes up, because I have to set the
record straight, I have to let the person know that a
"living will" and a "living trust"
are two different instruments that serve two different
One, the "living will," is your statement that
"If I am terminally ill or mortally injured (I'm
using simple language here to get the point across), then
don't hook me up to life support that will never return
me to life." It's the issue that's currently being
fought in Florida, with Governor Bush signing a law to
keep a woman alive over her family's wishes and a court
Her "living will" has nothing to do with
avoiding probate. It is a health care document. Really it
should be called a "death desire," but our
society can't handle that bluntness.
A "living trust," on the other hand, IS a
probate avoiding document.
Basically, probate is used to transfer property you own
when you die. If you have a will, your executor uses the
probate court to carry out the terms of your will. If you
die without a will, the laws of your state has statutes
that describe where your property goes and who is in
charge of getting it there.
So, if you don't own any property when you die, then
(generally...there are always exceptions) there is no
need for probate.
This is where the living trust steps in. It called a
"living" trust because it is created while you
When you create a trust, you transfer title to your
property to the trustee of the trust. You, as an
individual, no longer own the property.
So, if you die, no probate is needed (remember, there are
always exceptions), since YOU don't own the property. The
property is owned by the trustee of the trust. The trust
instrument instructs him/her on what to do with the
property upon your death.
A "living trust" is a LOT more complicated to
set up and maintain than a "living will." They
accomplish different tasks.
So, when you hear that a loved one has a "living
will to avoid probate," it might be smart to ask a
Phil Craig is a licensed attorney and entreprenuer. He
started practicing law at age 25 in 1979. He does not
take on any more clients, but is advisor to some of the
biggest names in the internet world. He shares his
knowledge gained over the last 25 years at his Living
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