Making important decisions about your future can be overwhelming, but having the right legal documents in place can bring peace of mind. Have you ever thought about who would make medical decisions for you if you couldn’t speak for yourself? Or how your assets would be distributed after you’re gone? These are tough questions, but answering them now can spare your loved ones from uncertainty later.
Two key documents that can protect your wishes are a Living Will and a Last Will and Testament—but they serve very different purposes. A Living Will specifies your medical preferences if you become incapacitated, while a Last Will and Testament directs how your assets are handled after your death.
Many people assume having one of these documents is enough, but the truth is, they work together to give you full control over your medical and financial affairs. This blog explains the difference between Living Will and Last Will and Testament, their key differences, and why having both may be essential to your estate plan.
What Is a Living Will in New York?
A Living Will is a legal document that records your medical treatment preferences in case you become unable to communicate due to illness or injury. This document only applies while you are alive and becomes effective if you are incapacitated and unable to express your medical wishes.
What a Living Will Covers
A Living Will typically includes instructions on:
- Whether you want life-prolonging treatments like mechanical ventilation or feeding tubes
- Preferences regarding pain management and palliative care
- Decisions about organ donation
- Instructions on do-not-resuscitate (DNR) orders
Is a Living Will Legally Recognized in New York?
New York does not have a specific statute governing Living Wills, but courts have upheld them as legally valid under case law. A properly drafted and signed Living Will can serve as evidence of your medical treatment preferences.
Who Makes Medical Decisions If You Do Not Have a Living Will?
If you do not have a Living Will and become incapacitated, decisions about your care will be made under the Family Health Care Decisions Act (FHCDA) (N.Y. Pub. Health Law § 2994-d). This law allows a surrogate—such as a spouse, child, or close relative—to make health care decisions on your behalf.
What Is a Last Will and Testament in New York?
A Last Will and Testament is a legal document that specifies how your assets should be distributed after your death.
What a Last Will and Testament Covers
A Last Will and Testament typically addresses:
- Asset distribution – Who inherits your property, bank accounts, and personal belongings
- Guardianship of minor children – Who will care for your children if they are under 18
- Executor appointment – The person responsible for carrying out your wishes and handling probate
- Debt and tax instructions – How debts and estate taxes should be handled
Does a Will Avoid Probate in New York?
No. A Will must go through probate in the New York Surrogate’s Court before assets can be distributed to beneficiaries. Probate is the court-supervised process of validating a Will, paying debts, and distributing assets.
If a person dies without a Will (intestate), New York’s intestacy laws (EPTL § 4-1.1) determine how their assets are distributed.
Key Differences Between a Living Will and a Last Will and Testament
| Feature | Living Will | Last Will and Testament |
|---|---|---|
| Purpose | Specifies medical treatment preferences if incapacitated | Distributes assets and names guardians after death |
| When It Takes Effect | During your lifetime, only if you are incapacitated | After your death |
| Covers | Life support, pain management, organ donation, DNR orders | Property distribution, guardianship, executor appointments |
| Legal Recognition in NY | No specific statute, but recognized by case law | Must go through probate, governed by New York laws |
| Who It Affects | Healthcare providers and family members | Beneficiaries, executors, and the probate court |
How to Create a Living Will and Last Will in New York
Creating a Living Will
- Clearly state your medical treatment preferences in writing
- Sign and date the document in the presence of witnesses
- Inform your family and healthcare providers about your Living Will
- Consider appointing a Health Care Proxy (N.Y. Pub. Health Law § 2981) to make medical decisions on your behalf
Creating a Last Will and Testament
- List your assets and decide who will inherit them
- Choose an executor to carry out your wishes
- Name guardians for minor children (if applicable)
- Sign your Will in front of two witnesses, as required by EPTL § 3-2.1
Having both documents in place can give you peace of mind, knowing that your wishes will be respected no matter what happens. If you have not yet created these documents, now is the time to make sure your affairs are in order.
Hiring an Attorney vs. DIY Estate Planning
While DIY estate planning tools exist, there are risks to drafting legal documents without professional guidance. Errors in wording, improper witnessing, or missing critical details could result in your Will or Living Will being challenged or deemed invalid.
Benefits of Hiring an Attorney
- Legal accuracy – A New York Wills lawyer makes certain your documents comply with New York state law
- Personalized planning – Your situation may require tailored solutions that DIY templates cannot provide
- Avoiding probate complications – A well-structured Will reduces delays and legal disputes
- Proper witnessing and execution – Mistakes in signing and witnessing can make a Will unenforceable
An attorney can also help integrate a Living Will with other estate planning tools, such as a Health Care Proxy or Power of Attorney, creating a comprehensive plan for your future.
Protect Your Future with a Comprehensive Estate Plan
Planning for the future isn’t just about protecting your assets—it’s about making sure your wishes are honored both during your lifetime and after you’re gone. A Living Will and a Last Will and Testament are essential parts of a well-rounded estate plan, ensuring your medical care aligns with your values and your loved ones are provided for.
At Sheryll Law, P.C., we help individuals and families in Riverhead, NY, and the East End of Long Island create legally sound estate plans that offer clarity and peace of mind. Whether you need to establish a Living Will, draft a Last Will and Testament, or build a more comprehensive estate plan, our team is here to guide you through the process.
If you’ve been searching for “last will and testament lawyers near me” or “estate planning attorney,” take the next step today. Call Sheryll Law, P.C. at (631) 506-8440 to schedule your consultation, or fill out our confidential online form to get started.
Protect your legacy with Sheryll Law.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.
Sheryll Law, P.C.
633 East Main Street, Suite 2
Riverhead, New York 11901
(631) 506-8440
https://sheryll-law.com/
