What Is the Difference Between a Will and a Living Will?

 Posted on July 07, 2026 in Estate Planning

For people of any age, estate planning allows them to make decisions about what will happen in the future. In many cases, the focus of an estate plan will be on what happens after a person’s death, and this will be covered in part by their last will and testament, which is commonly referred to as a will. However, multiple types of estate planning documents, including a living will, can also be used to address how issues such as medical care will be handled throughout the remainder of a person’s life. By understanding the differences between wills and living wills, a person and their loved ones can ensure that their wishes will be followed correctly.

Wills vs. Living Wills

A last will and testament is used to make decisions about how a person’s final affairs will be handled after their death, including who will inherit their property and assets. It will name a person known as an executor who will complete the probate process and ensure that the deceased person’s instructions will be followed when distributing their assets to their family members or other beneficiaries. A will can also be used to nominate a person as the guardian of the deceased person’s minor children, and it can specify the deceased person’s wishes for their funeral and burial or cremation.

The term "living will" would seem to indicate that it is a document that covers similar issues as a last will and testament prior to a person’s death. However, a living will can only address certain types of specific issues, and it will only apply in certain situations. Basically, a living will can make decisions about the medical care a person receives prior to their death, ensuring that their wishes will be followed if they cannot make these wishes known. To make decisions about medical treatment in other situations, other estate planning tools such as powers of attorney may be used.

When Does a Living Will Go Into Effect? 

The terms of a living will only go into effect if a person is diagnosed with a terminal illness and is unconscious or otherwise unable to communicate their wishes to medical providers. A person’s condition must be incurable and irreversible, and death must be imminent. That is, medical treatment will not be able to save a person’s life, but will only prolong the amount of time before their death.

In their living will, the person can state whether they do or do not want to receive medical treatment that would delay their death. For example, a living will may state that a person wants to be kept alive as long as possible, or it may state that they only want to receive treatment that will provide them with comfort and ease their passing as much as possible.

What Is a Healthcare Surrogate in Illinois?

A living will covers a very specific situation: terminal illness with no ability to communicate. But medical crises don't always work that way. Someone may be unconscious or unable to communicate in a way that does not meet the strict definition required for a living will to take effect. For those situations, Illinois law gives more options through the Illinois Healthcare Surrogate Act (755 ILCS 40).

Under the Healthcare Surrogate Act, if someone can’t make decisions for themselves and has no valid healthcare power of attorney in place, Illinois law automatically designates someone else – a "surrogate" – to make medical decisions on the first person's behalf. The surrogate is chosen from a list set by the law:

• A court-appointed guardian, if one exists. 

• A spouse or domestic partner comes next. 

• Then an adult child, a parent, an adult sibling, and so on down the line.

This system can create serious problems. Family members obviously don’t always agree, and the law gives priority based on legal relationship rather than on who actually knows what the patient wants. A longtime partner who is not legally married to the patient may have no legal standing at all. An estranged parent could outrank a sibling who has been the patient's primary support for years.

In contrast, a healthcare power of attorney allows you to name exactly who you trust to make those calls, and a healthcare surrogate isn’t necessary. 

Why it’s Important to Work with a Lawyer to Make a Healthcare Power of Attorney 

There is software available online that allows people to take care of important legal documents like healthcare powers of attorney without a lawyer's help. These can seem like they save a lot of money, but the problem is that a living will, a will, or a healthcare power of attorney that is not done correctly may be useless when you actually need it.

In Illinois, a valid living will must be signed and dated by the person making it in the presence of two witnesses. Neither of these people can be the person's primary doctor, a family member, or anyone who stands to inherit from the person's estate. 

A last will and testament requires two witnesses as well, and there are very specific rules for how the signing must happen. A healthcare power of attorney has its own legal requirements. These are not just technicalities. They are necessary to the legal foundation that makes these documents work when a family member challenges them or a healthcare provider questions them.

Steps everyone should take when putting these documents in place include:

• Working with an experienced attorney who understands Illinois estate planning law 

• Keeping original documents in a safe  location, not locked away where family members can’t find them in an emergency

• Giving copies to your primary care physician, any specialists managing a serious condition, and the person named as your agent or executor

• Revisiting your documents after major life events such as marriage, divorce, the death of a named agent, or a significant change in health

An attorney-written document is not just about technical errors. When family members disagree fiercely, a living will is much harder to challenge than one that was downloaded from the internet and signed without guidance. The peace of mind that comes from knowing your wishes are clearly stated and legally sound is exactly what working with an attorney is meant to provide.

Contact Our DuPage County Living Will Attorney

At A. Traub & Associates, we can help you understand your options for making decisions about your medical treatment, your property, and other issues. We will work with you to ensure that all estate planning documents are executed correctly, providing you with peace of mind that your wishes will be followed, no matter what happens. Contact our Wheaton estate planning lawyers today at 630-426-0196 to set up a consultation and learn how we can address your needs.