Differences Between a Will, a Living Will, and a Living Trust

By Lane V. Erickson, Idaho Estate Planning Attorney

Wills, living wills, and living trusts, are all documents or tools that can be used as part of a person’s estate plan. In addition to these documents, there are others that could be used including a durable power of attorney, a power of attorney for health care, a minor’s trust, a supplemental needs trust, and many other documents as well. Because of the large variety of documents that could be included as part of an estate plan, it is no wonder that people are often confused about the types of documents they may need for their own plan. The good news is, we are here to help.

At Racine Olson, we have been helping individuals and couples create their own customized estate plan for over 70 years. We have the skill and experience necessary to help you determine what documents you need to protect yourself while you are alive and to provide for your family and loved ones after you have passed away.

If you are not sure where to start with your own estate plan, we encourage you to download our Estate Planning Questionnaire. This is pdf document is simple to follow and understand. You can type your information directly into this document. This allows you to gather all your information together to help you make decisions about what you want to accomplish. We then offer a free 30-minute consultation to review your Questionnaire with you and answer your questions so we can understand who your family members and loved ones are, and what you want to accomplish.

The purpose of this article is to give a brief explanation about what a written will is, what a living will is, and what a living trust is. Keep in mind that this article is only a summary of some of the options available to you. If you have questions, we encourage you to contact us for the free 30-minute consultation where we can answer your specific questions and help you with your needs.

Let’s get started by talking first about a Will. A written Will is a document where you get to describe what you own in your estate and who you want specific items in your estate to go to.

Additionally, in your written Will you can designate who will be your personal representative. The personal representative is the individual who oversees your estate and of making sure that the instructions you leave in your written Will are carried out. To be valid in Idaho a written Will has to be either formal or holographic.

A holographic Will is one that is written out in the handwriting of the individual who is creating it. To be valid and enforceable it must contain statements of testamentary intent, it must be signed, and it has to be dated. We do not favor holographic Wills because they can create many problems. Look through our other articles on this website and you will see all the reasons that we believe a holographic Will is a bad idea.

A formal written Will is one that is typed. It is dated and signed by the person creating the Will. Additionally, it has two witnesses who sign the Will indicating that they saw the individual who created the Will sign it as well. Finally, to make the Will self-authenticating, it should have a notary sign and who testifies that they saw both the testator, and the witnesses sign the written Will.

Everyone should have a written Will. It does not need to be complex, and it does not need to be fancy. However, it should have all the basic elements of a valid and enforceable Will.

A living will is another document that everyone should have as part of their basic estate plan. In Idaho, a living will is often joined with another document known as a healthcare power of attorney. The reason for this is that these two documents are directly related to the health care you receive while you are alive.

The purpose of a living will is to give you the ability to leave specific instructions to your doctors and other healthcare providers about what you do want them to do and what you do not want them to do if you were in the hospital on life support. In essence, if you are unable to communicate with your Healthcare Providers, you have a terminal condition that your doctors cannot treat, you are on life support and if they turn the life-support off you would likely pass away imminently, then your living will is valid and enforceable.

You can leave instructions that if you are in this condition the doctor should do everything they can to keep you alive as long as possible. This includes putting you on every machine possible and also providing you with continuous hydration and nutrition intravenously.

Alternatively, many people choose what I call the “pull the plug” option. In other words, if this is their condition, and the doctors cannot do anything to treat or revive you beyond your current vegetative state while on life support, many people say unplug it and let me pass away normally and naturally.

Whatever your choice is, your living will is the document that gives you the ability to leave these specific instructions. Again, these instructions only become effective if you are in the condition described above.

A living trust is a different document than any of the other described above. In fact, under the law, a living trust is a separate legal entity that is created for the purpose of owning property. Many people will use a living trust so that they can transfer all of their land, bank accounts, vehicles, and other assets away from their personal ownership so that when they pass away no probate is required.

Alternatively, some people use a living trust as a legacy trust as well. In other words, they are thinking about their children or grandchildren and they want to make sure their estate can provide resources to these individuals over a long period of time. With a written will, your estate must be distributed within a short time after your death. However, with a living trust, the trust can continue providing benefits to the named beneficiaries for decades.

Every person should have at least a basic estate plan which would include a last will and testament, a durable power of attorney, a living will, and a healthcare power of attorney. Whether a person also needs any type or kind of a living trust will depend on their circumstances and what it is they want to accomplish.

If you have questions or concerns about your estate plan, or whether you need any of the documents listed above, we can help. We have assisted numerous clients in the creation and updating of their own personal plans. We are confident that we have the skill, experience, and ability necessary to help you too! Call us today for your free 30-minute consultation.

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.