Estate Planning

Do You Know The Difference Between: A Living Trust? A Living Will? A Testamentary Will?

A Living Trust

It is a legally binding document whereby you place your property into a trust that you still control while living.   This is why it is called a “living” trust.  The trust document will state who gets the property of the trust when you die.  At death, your property immediately passes to your beneficiaries.  This eliminates going through probate court, which can be expensive and time consuming.   You can revoke (dissolve) a living trust at any time if you change your mind.

A Testamentary Will

It is a legally binding document that dictates who will get your property after your death.  It can also designate guardians for your minor children.   Unlike a trust, your estate must still pass through probate court before your heirs receive their share of your property.   The probate court, however, will still follow the terms of your will.   (If you die without a will or a trust, the probate court will follow Michigan statutory rules of intestate succession as to who will get your property — this may not be what you wanted).

A “Living Will”

Michigan law does not explicitly recognize the “living will”.   However, Michigan does allow the designation of a patient advocate, which has largely the same effect as a “living will”.    A patient advocate is someone whom you have appointed to make decisions regarding your medical treatment when you are no longer able to do so.    The patient advocate must follow your explicit instructions that were made while you were competent through a legally binding document known as a health care declaration that names the patient advocate and gives them durable power of attorney to act on your behalf.

In particular, your health care declaration should provide the patient advocate with specific guidance as to what to do when you are terminally ill or in an irreversible coma.    It should instruct them as to when to withdraw or withhold further treatment that only prolongs your life without hope of recovery.    By limiting the scope of treatment in such circumstances, a health care declaration can protect your estate from being drained away by unnecessary medical bills and allow you to leave more to your heirs.