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Translating Legalese with Barton Law: Will, Last Will and Testament and Living Will

Welcome to our first post of our new four-part series: Translating Legalese with Barton Law. Legalese is used to describe legal terms and documents that are difficult for non-lawyers to understand. As attorneys, it is our job to translate these terms and documents for you to help you make well-informed decisions.

This month we are translating Will, Last Will and Testament and Living Will as these terms are often used interchangeably by clients.

"Will" and "Last Will and Testament" refer to the same document. A Will is generally used to direct the distribution of your property at the time of your death and any specifications for such distribution, name an executor or personal representative to carry out your wishes and list his or her powers when serving in such capacity, and, in the case of minors, name a guardian for your minor children. The word "last" simply indicates that the document is the last Will that was made and therefore is the document that should be used at the time of death. To further avoid any confusion, most Wills include language that states that any former Will is revoked and made void at the time of signing the new one.

A Living Will is a document that allows you to declare your end-of-life wishes in the event that you are terminally ill or in a state of permanent unconsciousness. More specifically, it allows you to direct your physician to withhold or withdraw life-sustaining treatment that serves only to prolong the process of death (again, only if you are terminally ill or in a state of permanent unconsciousness). Most clients choose to execute this document as they understand that such treatment will not provide any significant or meaningful recovery and instead may just prolong the process of dying.

*BONUS WORD: Codicil

A Codicil is an amendment to your Will. This document is used to revoke, modify, or add language to part(s) of your Will when changes are minor and do not warrant executing any entirely new Will. However, it's usually best to draft a new Will if the changes are significant or the client is concerned about beneficiaries seeing the language that was included in the original Will (i.e. not including a child in the Will as a beneficiary and later adding that child as a beneficiary in the Codicil due to an improved relationship).


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