Wills and Living Wills in New York: What’s the Difference?

A will, also called a last will and testament, and a living will are two types of estate planning documents that serve different purposes. However, both are intended to provide guidance during situations in which the subject of either is no longer able to communicate his or her wishes independently. Below is an overview of the differences between wills and living wills in New York.

Wills

A will is a document that states the maker of the will’s final wishes. The maker of a will is also known as a testator. Following a testator’s death, the court will enforce the terms of his or her will. While wills often provide instructions regarding the distribution of a testator’s property, they are also typically used to:

• Name an executor of the testator’s estate
• Name guardians for children and property
• Establish the method by which debts and taxes will be paid

Living Wills

A living will is a legal document that expresses an individual’s medical treatment preferences in the event of incapacity. Although living wills are specifically tailored to meet the needs of each individual, it is typical for such documents to address the following medical matters

• Organ and bodily tissue donations
• The use of artificial respiration, i.e., breathing machines
• The use of feeding tubes, IV drips, and other methods of artificial nutrition and hydration
• The use of electric shock therapy
• Specific surgical procedures

Living Wills in New York

While New York’s statutes do not specifically address the subject of living wills, such documents are legally enforceable in the state, and the subject is touched upon indirectly in the state’s Public Health Law. While New York’s Public Health Law doesn’t detail exactly what a living will must contain, it does serve to make such documents enforceable under the law. Typically, when a living will is drafted in New York, it is included as part of a more comprehensive legal document that also names a proxy to make end of life and health care decisions on behalf of the named individual.

In order for such a document to be valid, the state requires signatures and statements by two witnesses. In addition, an alternate agent may be named to account for the primary agent’s inability to fulfill his or her obligations for any reason.

New York Estate Planning Attorneys

Estate planning can be complicated, so it’s important to consult with an experienced estate planning professional prior to starting the process. At O’Connell and Aronowitz, our experienced New York estate planning attorneys provide individuals in Albany, Latham, Plattsburgh, Saratoga, and upstate New York with sophisticated estate planning guidance, including the preparation of wills, trusts, and other essential services. Estate planning is essential for everyone, regardless of financial status, in order to protect oneself and provide for loved ones. Please contact us for a consultation.