Living Will vs. Last Will and Testament: What’s the Difference?

If you’re starting to think about estate planning, you’ve probably come across two terms that sound a lot alike: Living Will and Last Will and Testament. They both have “Will” in the name, and it’s easy to assume they do similar things. But in reality, they serve completely different purposes — and both are essential parts of a comprehensive estate plan in Nebraska.

Let’s break down the key differences so you can understand why you may need both.

What Is a Living Will?

A Living Will is a legal document that outlines your preferences for medical treatment if you become unable to communicate your wishes. In Nebraska, it’s governed by the Rights of the Terminally Ill Act and typically addresses things like:

• Whether you want life-sustaining treatment (such as ventilators or resuscitation)

• Whether you want artificial nutrition or hydration

• Preferences for comfort care, pain management, and other end-of-life decisions

The goal of a Living Will is to make your medical wishes clear in case you can’t speak for yourself due to illness or injury. It’s not about giving someone else authority to act — it’s about stating your choices in writing.

Living Will vs. Health Care Power of Attorney (HCPOA)

In Nebraska, a Living Will is often paired with — or included within — a Health Care Power of Attorney (HCPOA). The HCPOA allows you to name a trusted person (called your agent) to make broader medical decisions on your behalf if you’re incapacitated.

Think of it like this:

• Living Will = What you want

• HCPOA = Who will make decisions for you

Together, they give you both a voice and an advocate. Without these documents in place, your family could be forced to go to court to obtain a guardianship just to make medical decisions — a stressful, expensive process that’s especially difficult during a crisis.

What Is a Last Will and Testament?

A Last Will and Testament, commonly referred to as a Will, is a legal document that only takes effect after your death. In Nebraska, a valid Will allows you to:

• Appoint a Personal Representative (the Nebraska term for Executor) to handle your estate

• Name a guardian for minor children

• Direct how your assets will be distributed

This document gives you control over what happens to your property and responsibilities after you pass away. Without a valid Will, your estate is distributed according to Nebraska’s intestacy laws — which might not align with your preferences.

The probate process also becomes more difficult without a Will, and your family has less clarity and control during an already emotional time.

Why You Need Both Documents in Your Estate Plan

Here’s the big-picture summary:

• Living Will and Health Care Power of Attorney → Protect you during life if you’re unable to communicate or make decisions

• Last Will and Testament → Takes effect after death to distribute assets and name guardians

Both documents serve very different but equally important functions. One handles your medical care in the event of incapacity. The other outlines your wishes for your estate after you’re gone. Having one without the other leaves serious gaps in your plan — and in your protection.

A complete estate plan should cover both life and death scenarios.

Frequently Asked Questions

Is a Living Will the same as a DNR?

No. A Living Will outlines your general preferences for end-of-life treatment, while a Do Not Resuscitate (DNR) order is a specific medical directive issued by a doctor. Both may be part of your healthcare planning, but they are not the same.

What happens if I don’t have a Will in Nebraska?

If you pass away without a valid Last Will and Testament, Nebraska’s intestate succession laws determine how your assets are distributed. This usually means your property goes to close relatives, but the outcome may not reflect your actual wishes.

Can I create my own Will or Living Will in Nebraska?

Technically yes, but homemade documents often contain errors or omissions that make them invalid or confusing. It’s best to work with an estate planning attorney to ensure your documents are legally sound, properly signed, and up to date.

Who should I choose as my Health Care Power of Attorney?

Choose someone you trust to follow your wishes and make informed medical decisions. This person should be calm under pressure, understand your values, and be willing to advocate for you if needed.

Do I need both a Will and a Trust?

It depends on your situation. Many people in Nebraska benefit from having both a Will and a Revocable Living Trust. The Will covers anything not included in the trust and can name guardians for minor children. The trust helps avoid probate and manage assets during incapacity. An estate planning attorney can help determine what’s right for you.