Minnesota Estate Planning: Living Wills and Last Wills, What’s The Difference?

The estate planning world is a notoriously confusing one. Jargon about trustees and grantors and intestacy laws leave most people puzzled and even more befuddled than when the conversation began. 

One especially confusing area, given the similarity in words, is keeping straight the difference between a “Living Will” and a “Last Will and Testament.” Though they sound similar, they are actually completely different estate planning tools and we’ll explore those differences below.

Timing of a Living Will and Last Will in Minnesota

One of the biggest differences between a living will and a last will is the time period where they become effective. A last will has absolutely no legal significance until the person who wrote the will is dead. At that point, the will must be filed with a probate court and the estate will then be handled in the manner discussed in the last will.

Living wills take effect, as the name suggests, during a person’s life. These documents are used in cases where a person becomes incapacitated in some way, such as falling into a coma or otherwise being unable to communicate.

Purpose of a Living Will in Minnesota

Though both documents are designed to provide instructions for people once you are no longer able to communicate, the similarities end there. Living wills exist to handle health care decisions while a person is still alive. Living wills are incredibly useful and crucial estate planning tools because they help your loved ones understand what to do regarding your health care wishes when you are unable to communicate those wishes. This can ease lots of worry among your family members about your care and also reduce friction in cases where loved ones might disagree over important end-of-life issues.

Last wills, on the other hand, deal with your wishes for distributing property once you have died. These are also important documents and allow you to communicate to your executor how you want your remaining assets distributed once you are no longer around. Health care issues are totally removed from a last will and testament given that a will only becomes effective upon a person’s death, at which point, health care issues become rather moot.

Agents to Minnesota Living Wills

In both living wills and last wills, individuals nominate someone to make decisions on their behalf. In a last will, the person chosen to carry out your wishes is known as the executor of your estate. This person is in charge of taking an inventory of the estate, settling claims with creditors and distributing property to heirs. Though you can name an executor, the probate court overseeing the distribution of your estate has to officially sign off on the selection. In a living will, the person you designate to handle your important health care decisions is known as a health care agent. This person is in charge of communicating your desires to your doctors and other health care providers. Health care agents do not require approval from any court and thus your choice does not require another layer of bureaucracy to become effective.

Are there living wills in Minnesota? I thought they were called health care directives?

You’re right. Though the point of the article has been to explain the difference between two commonly used estate planning terms, the truth is that in Minnesota the terminology has recently undergone a change. In Minnesota there are living wills, they just aren’t called that anymore. What happened was before August 1, 1998, the law in Minnesota allowed for the creation of several types of health care directives, including durable health care powers of attorney, mental health declarations and living wills. The law has since changed so that residents of Minnesota now use one form for all their various health care instructions.

An experienced Minnesota estate planning lawyer can help walk you through the confusing process of drafting and implementing a health care directive. For more information on estate planning in Minnesota, along with a variety of other topics, contact Joseph M. Flanders of Flanders Law Firm at (612) 424-0398

Source: “Questions and Answers About Health Care Directives,” published at Health.State.MN.US.

See Our Related Blog Posts:

Minnesota Health Care Directives: What are they and how do they work?

What is a power of attorney and how does it work in Minnesota?