What is the difference between a living will and a living trust? At Windrose Law Center PLC, we often talk to clients who are n

ot clear on the differences between a living will and a living trust. A living will and a living trust each play their own distinct role in your Arizona estate plan. This article will explain the difference between a living will and a living trust and why each is an important component of a complete estate plan in Arizona. 

What is a Living Will in Arizona? 

A living will is a document that articulates your end-of-life wishes when you cannot communicate them for yourself, which is particularly important given Arizona’s medical decision making laws.  What life sustaining measures would or wouldn’t you want if you could no longer communicate and were at the end of your life.  If you were in a terminal condition and could no longer communicate, would you want: 

• Artificial food or fluid
• Cardiopulmonary resuscitation like electric shock, the use of drugs, or artificial breathing
• Comfort care and pain management 
• Hospice care rather than to be taken to a hospital if it is avoidable
• Your life to be prolonged to the greatest extent possible

Hospice care is a type of support for people who are near the end of life, usually when a serious illness can no longer be treated to get better. Instead of focusing on cures, hospice focuses on comfort, pain relief, and quality of life. It helps manage symptoms and provides emotional and spiritual support to the person and their family. Hospice care can happen at home, in a hospice center, or in certain hospital areas, and it’s provided by a team of doctors, nurses, social workers, and counselors who work together to meet the person’s needs. The goal of hospice care is to make a person’s remaining time as comfortable as possible and to provide support to the person’s loved ones. 

The key is not being able to communicate anymore.  If you can communicate your wishes, then your Living Will does not need to be used and you can decide what treatment you would or would not want. 

Would you want to differentiate between various end of life stages (remembering that in all of these situations for your Living Will to govern you would also have to not be able to communicate medical decisions for yourself) such as being:

• Diagnosed with a terminal illness 
• In an irreversible, incurable coma
• In a persistent vegetative state

The Terry Schiavo Case

Do you remember Terry Schiavo? Terry Schiavo was a Florida woman who had gone into cardiac arrest in 1990 resulting in her being unable to communicate her end-of-life wishes. Several doctors diagnosed her as being in a persistent vegetative state based on evaluating her neurologically. Her husband wanted her feeding tube and all other life sustaining measures to be withheld because he felt that she would not want to live life as a vegetable. Her parents disagreed, believing that their daughter had a level of awareness and could recover. After 15 years of court battles, including a United States Supreme Court case, Terry’s husband was ultimately successful.  Her feeding tube was removed in 2005 and she died shortly after.   A Living Will can clarify a person’s preferences on life support and other treatments, preventing the kind of family conflict and legal battles that occurred in the Schiavo case. A living will can prevent family conflicts over end-of-life decisions

End-of-Life and Pregant

Would these answers change if you were pregnant? If you were carrying a viable pregnancy with a healthy fetus, you might feel differently about certain end-of-life measures. You might prefer to stay on life support until the pregnancy is carried to term, especially if it would ensure the birth of a healthy child. These considerations can be an important part of your Living Will, ensuring your wishes are honored while balancing your unique circumstances.

Who Invokes a Living Will in Arizona?  

Arizona law supports a Health Care Power of Attorney, which allows someone you trust to serve as your Agent if you cannot communicate your medical wishes. This document is vital in Arizona estate planning to ensure your medical preferences are respected.

A living will often accompanies another important document, your Health Care Power of Attorney.  Your Health Care Power of Attorney is a document that appoints someone you trust to serve as your Agent to speak up for you when you cannot communicate your own health care wishes. Your Agent steps in on your behalf to make sure that your health care providers honor your wishes, values, and instructions.  Your Agent collaborates with your health care team to follow the directives that you outline in your Living Will for end of life decisions. A Living Will is a detailed guide that helps your health care agent make decisions using the instructions you have provided, such as your wishes regarding life support, resuscitation, and managing pain.  

What happens if your Living Will does not address every scenario? 

Having a Health Care Power of Attorney is so important.  Appointing your health care agent is how you can ensure that you are covered for all situations, including those not directly addressed by the Living Will. Your Agent has the authority to make health care choices in areas where you may not have specified exact preferences. This document empowers your Agent to act based on their understanding of your values, faith, and personal beliefs, giving them guidance for making the best possible choices for you. If you do not have a health care power of attorney, there is a risk that a court will need to choose a guardian for you.  

• Do you have family members who might look good on paper but in real life, they are not the best people? 
• Do you want to risk having a judge pick a health care agent for you if the risk also includes a judge selecting a fiduciary who your estate pays rather than someone related to you? 
• Do you want to choose who will make your health care decisions for you if you cannot make them for yourself, or would you rather a judge did it? 

These are all questions to ask yourself and if you have any pause or hesitation on allowing someone else to choose your health care agent, it is extremely important to get a Health Care Power of Attorney in place. Add a Living Will to it so that your agent knows your wishes. 

What is a Living Trust?

Living Trusts in Arizona

An Arizona living trust is used to own and manage your assets during your life, in case of incapacity, and after your death. This is a popular tool among Arizona estate planning attorneys because it helps families avoid the probate process, which can be time-consuming in Arizona.

A Living Trust is a legal arrangement where you transfer ownership of your assets into a trust during your lifetime. You manage these assets while you’re alive (or appoint a trustee to do so), and the trust outlines how those assets will be distributed after your death. It’s called a “living” or “revocable” trust because you create it while you’re alive and can modify or revoke it at any time.

Why are Living Trusts so popular in Arizona? 

• A living trust avoids probate in Arizona. A major benefit of a properly funded and created revocable living trust is that any assets that are part of your trust avoid probate.  Probate is the court process needed to distribute assets after someone dies.  This means that your beneficiaries can receive their inheritance a lot quicker and with more privacy without going to court than they would if you died and only had a will in place. Assets passed using a will require probate. 
• An Arizona Living Trust gives you control. As the creator of your revocable living trust, you can always add or remove assets and make changes to it  as long as you are mentally able. You can appoint someone (called a Trustee) to manage your trust if you die or become incapacitated. 
• An Arizona Living Trust enables you to plan for incapacity. A living trust is especially useful if you become unable to manage your own affairs due to illness or injury. A successor trustee (someone you appoint in the trust) can step in to manage the trust assets for your benefit, helping avoid the need for a court appointing someone a judge picks. 
• A living trust protects your loved ones by specifying how and when they’ll receive inheritance according to Arizona estate planning laws. You can specify exactly how and when your beneficiaries receive their inheritance. For example, you can leave money in the trust to support minor children until they reach a certain age, or to provide for a loved one with special needs.

What does it mean to be incapacitated? To be incapacitated means to be physically or mentally unable to make decisions or manage your own affairs. In a legal context, incapacity often refers to a state where a person cannot make informed choices about their health care, finances, or personal matters due to a medical condition, injury, or mental decline. You might still be able to communicate your medical wishes if you are incapacitated. Incapacity doesn’t necessarily mean a total inability to communicate; it often means you cannot make legally recognized, informed decisions due to limited cognitive or physical function. For instance, someone might be incapacitated in a legal sense—unable to fully understand the implications of complex decisions or manage financial matters independently—but still able to express simple preferences about their medical care.

Probate avoidance is a major benefit for Arizona residents. Assets within a revocable living trust can bypass Arizona’s probate process, saving your beneficiaries time and preserving privacy.

What is the difference between a living trust and a will? Unlike a will, which only takes effect after death, a living trust goes into effect immediately upon its creation and continues after your death. However, most people still create a “pour-over will” to catch any assets not placed in the trust before they passed, ensuring those assets are added to the trust and distributed according to its terms.

Do you have to be wealthy to have a living trust in Arizona?

Living trusts aren’t just for the wealthy; Arizona families of all estate sizes benefit from these documents, which help with minor children or dependents and provide essential incapacity planning. Even if your estate is modest, a living trust in Arizona

We have all heard the term “trust fund baby,” but that does not mean you have to be wealthy to find value in creating a living trust. In fact, those trust fund babies have much more complex trusts than a revocable living trust. While living trusts are often associated with wealthy individuals, they are beneficial for people with modest estates as well.

• Living Trusts avoid probate which can be time consuming and expensive
• Living Trusts help with minor children. If you have minor children, a child with special needs, or other dependents, a living trust can outline exactly how and when they receive their inheritance. This structure can protect assets for a young or vulnerable beneficiary, helping ensure your wishes are carried out even if your estate isn’t large.
• Living Trusts help you plan for incapacity. A living trust allows you to designate a successor trustee to manage your assets if you become incapacitated. This feature isn’t just useful for high-value estates; it’s valuable for anyone who wants control over their financial affairs to remain with a trusted individual rather than going through a court-appointed guardianship.
• A living trust provides privacy that a will does not. When a will goes through probate, it becomes a public record, which means anyone can access it. A trust, however, remains private. This benefit is often attractive for people who, regardless of wealth, want to keep family matters confidential.
• Even if you have a modest estate, a living trust allows you to specify exactly how your assets are distributed, which can be particularly helpful if you want to set conditions on inheritance (like age milestones) or have special requests.

A living trust can be a great choice for many people, not just rich people. 

Planning for your future has a lot of things that go into it. When you are planning what happens to your entire life savings and planning for whether you live or die with a health care power of attorney and living will, trust an expert.  Schedule a consultation with us and we will be happy to guide you through these important decisions in  a way that is simple, informative, and not overwhelming. 

Schedule a Consultation with an Arizona Estate Planning Attorney

If you’re looking to create a living trust or living will in Arizona, schedule a consultation with an experienced Arizona estate planning attorney. We’ll guide you through every step of estate planning in Arizona, keeping the process simple, informative, and stress-free.