Estate Planning and the “Living” Terms

“Living Will.” “Living Trust.” These are terms that will inevitably be mentioned during your initial meeting with an estate planning attorney. The names of these documents makes it sound like they might or should do about the same thing. But, suprise! They don’t. They are not even interrelated documents. They are merely pieces from the same puzzle: your personal legal affairs. They operate adjacent to one another, but not with each other.

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A “living will” is a medical document that has real world effect during your lifetime – it states what you wish to happen should you ever be unfortunate enough to find yourself in a persistent vegetative state (a.k.a. a coma which never ends).

Which brings us to a bit of history.  Essentially, the living will guards against the Terri Schiavo situation. For people who lived through this particular chapter in our history of national controversies, the dilemma and ensuing controversy posed by Terri Schiavo’s situation were a visceral experience. But I realize some of my readers may have come to political consciousness after this scenario played itself out. Here’s the Wikipedia link. Familiarize yourself, please, and come back to us.  A living will directs and empowers your agent to remove life sustaining procedures if a doctor determines that you have no reasonable chance of recovery from a persistent vegetative state. So, if you have created a living will, you can avoid involving Congress, the President, and/or the American public in your medical decisions, something which I certainly desire to help my clients do to the greatest extent possible.

A “living trust,” on the other hand, is a will substitute. A living trust is where you say, via the document, that you are going to hold everything in trust during your lifetime with you as the trustee, and that at your death, your successor trustee will distribute all the things you have placed into the trust to the people you have designated as your beneficiaries. Just like a will, though, you can change a living trust during your lifetime, and so you will also sometimes hear it referred to as a “revocable trust” (they are the same thing). So maybe you can see why I call a living trust a sort of legal fiction: you are agreeing with yourself to do something which you are pretty much already doing, but you are formalizing it so that a court gives it deference. Courts love them because they don’t have to get involved and tie up public resources. Clients love them because they are flexible and private, and offer a reasonable degree of assurance that a judge won’t step in after they are gone and alter their wishes (particularly because you can add no-contest provisions).

A living trust and a living will can safely be considered essential pieces of every client’s estate planning puzzle, and that’s why they will inevitably be brought up in your consultation. Hopefully, you’ve now learned how they are different, and won’t get them confused!

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Misha is the owner of Speedwell Law, PLLC. If you would like assistance in preparing a Living Trust or a Living Will, Misha can be reached at (703) 553-2577 or mgill@speedwelllaw.com.

This post, including any of its contents or links, is not intended to provide you with legal advice. It provides personal perspectives on legal news and developments. Reading this post, leaving a comment, or communicating with its author by email or over the Internet does not create any attorney-client relationship.