[In Part 1, we discussed the importance of having a Healthcare Power of Attorney and a Durable Power of Attorney as part of the your Estate Plan. Today, we discuss two other essential estate planning documents – the Living Will and the Will.]
Living Will (Advanced Directive)
As difficult as it may be to think about now, it is important to prepare for the worst situations to help make things easier for your loved ones during an extremely difficult time. What if doctors determine that your previous state of health is unlikely to be restored, do you want to remain on life support? Do you want a family member making these decisions through a Healthcare Power of Attorney or would you rather have these decisions already determined? In these situations, family conflict may occur, which can result in unnecessary costly and time-consuming litigation.
A Living Will is a document that gives your health care providers instructions to withdraw or withhold life prolonging measures in certain situations. Through a Living Will, you may select when the terms of the document will apply. You may choose to withhold life prolonging measures under three varying circumstances that are based upon medical determinations about your condition. You may also elect exceptions as to which life prolonging measures are withheld with respect to artificial hydration and nutrition. Through an Estate Plan, you may also control whether your Health Care Power of Attorney or your Living Will should take priority in a situation that creates a conflict of instructions.
Like the Healthcare Power of Attorney, a Living Will is intended to be valid in most jurisdictions. However, in North Carolina, in order for the document to be valid it should be signed by the person in the presence of two witnesses and a notary public who must attest the signature. A Living Will, much like the Healthcare Power of Attorney, may be registered with the North Carolina Secretary of State and may be revoked either by a signed writing or by communicating your intent to revoke in a clear and consistent manner.
Will
A Will is the document that disposes of your property at your death. Property that can be disposed of through a will includes real property (which may include your home and any other land or buildings that you have an interest in) and tangible & intangible personal property (tangible property includes things such as jewelry, furniture, etc. and intangible property includes patents, trademarks, copyrights, stocks, etc.) In order to effectuate your intent, a 
provision of your Will must designate an executor of your estate. An executor is someone you named to carry out the instructions in your Will. You may also appoint a guardian for any minor children and a trustee for any distributions that may be made to your minor children before they have reached the age of majority. In the absence of a Will, North Carolina will dispose of your estate in accordance with the North Carolina General Statutes Chapter 29, the Intestate Succession statute. By having a Will you can determine who will get your assets rather than the State. A valid Will in North Carolina requires that it must be signed by the testator in the presence of two witnesses who then attest to your signature by signing the document.
A valid Will requires the testator be at least 18 years old and have the proper capacity to dispose of their assets. A person is generally deemed to have the capacity to execute a Will if they know what property they have, understand the effects of creating a Will, and know to whom they are disposing their assets. The capacity that is required to execute a Power of Attorney, Living Will, or Healthcare POA is substantially similar.
Conclusion
By planning ahead and having a lawyer help you create an estate plan that includes a Health Care Power of Attorney, Durable Power of Attorney, Living Will (Advance Directive), and a Will, you can have some comfort knowing your wishes will be carried out. You can feel at ease knowing that your health care decisions will be made by the person you deem most appropriate, that your end of life health care decisions are ones that you have made in advance, and that you decided who will be the beneficiary of your hard-earned assets. If you wish to create an estate plan with these documents, contact an estate planning lawyer today.