What is the Difference between a Will, Living Will and a Pour-Over Will

You may have discussed estate planning documents with family and friends and heard terms such as Will, Pour-Over Will, or Living Will and wondered if these are all the same document.  As legal documents can commonly be referred to by different names, the confusion is understandable.  Here are the common types of Wills and how they may be of benefit to your estate plan.

Last Will and Testament

This is what most people think of when someone refers to a "Will".  A last will and testament allows an individual to name beneficiaries of their estate assets, nominate guardians for minor children, and identify who they wish to be the executor of their estate.  A Will only takes effect after you have died but can be amended at any time prior to your death.  States have specific formalities for signing. In Illinois, a Will must have two witnesses to be a valid last will and testament. A notary attestation is also recommended.

Pour-Over Will
A pour-over will is a type of last will and testament that goes hand-in-hand with a declaration of trust (a revocable trust).  Rather than the Will stating how the assets are to be distributed, the Will leaves the assets to the declaration of trust and a trustee handles the distribution.  The use of a pour-over will and trust combination is helpful to avoid probate proceedings(court oversight of an estate).  The pour-over acts as a safety net in case the trust is not fully funded and allows the trust to be the primary dispositive document.

Living Will

Finally, a living will is not a dispositive document but instead provides guidance to healthcare professionals regarding a person's preference for certain forms of medical treatment when he or she is in a terminal condition and unable to express end-of-life wishes.  Illinois' statutory declaration of living will allows a person to state his or her preference to withhold any death delaying procedures when possibly nearing the end of life.  A living will allows the family and healthcare professionals to understand a person's wishes when he or she is unable to communicate. Of course, even with an executed living will, as long as an individual is able to communicate his or her wishes with a health professional, those directions will always supersede the written document.

If you have any questions about preparing an estate plan, please feel free to contact Glick and Trostin, LLC at 312-346-8258.

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