Am I Required to Have a Will, or a Living Will?

Estate planning is, for too many people, an afterthought or something on their To Do list that they never get around to taking care of. Though creating a well thought out, thoroughly executed estate plan is always in your best interests, there is no legal requirement stating that you must take any estate planning actions. You never have to make a last will and testament nor a living will, though doing so can make your life, and the life of your family and loved ones, much easier.

Last Will and Testament: Most often simply referred to as just a will, a last will and testament is a document in which you state what you want to happen to all your property after you die. A will only takes effect once you die, and until that time you can make whatever changes you wish. You are never under any obligation to create a last will and testament, though it is always a good idea to do so. If you don’t create a will, your property still passes to others after you die, but in accordance with laws your state already has. These laws, known as laws of intestacy or intestate succession, require that your property passes to a predetermined class of people, usually your closest family members. These laws make no provisions to try to find out what you would have wanted, and the only way to ensure your desires are met is to create a will.

Living Will: A living will is also a document in which you express your wishes, but instead of detailing how you want your property handled after you die, a living will details what type of medical care you do or do not wish to receive if you ever become unconscious or are unable to express your wishes. The living will, like the will, is never required of you. However, if you don’t make a living will or take other precautions, such as creating a health care power of attorney, someone else will inevitably have to make your health care decisions for you. Whether this person makes the decisions you would have wanted made is never guaranteed.