FREQUENTLY ASKED QUESTIONS

Our firm primarily offers estate planning representation, and representation for probate and estate/trust administration matters. Our attorneys are also able to assist with real estate matters, corporate matters and pre/postnuptial matters.

Simply put, estate planning is the process of laying the groundwork for how assets will be managed and distributed following a person’s passing. Without an estate plan, the distribution of a person’s assets is controlled by the default succession laws of his/her/their home state, which can often result in an undesirable distribution of assets (e.g., assets are divided between a surviving spouse and children, rather than distributed entirely to a surviving spouse, etc.). Estate planning is a crucial tool to ensure that, following a person’s passing, his/her/their assets are structured in accordance with his/her/their wishes. Estate planning also includes arranging your estate to help minimize taxes.

The cornerstones of a typical estate plan include a Last Will and Testament and financial and healthcare advance directives (e.g., Power of Attorney, Health Care Proxy, etc.). A person’s circumstances may also call for a Revocable Living Trust, or a variety of Irrevocable Trusts designed for tax planning.

There are two main types of trusts – a “living” trust and a testamentary trust. A living trust is created and funded during a person’s lifetime, and bypasses the probate process upon his/her/their death. A testamentary trust is a trust created under a person’s Last Will and Testament, and does not exist until the Last Will and Testament is admitted to probate. “Living” trusts are utilized for many different reasons, including as a tool to pass assets outside of the probate process, and/or for tax planning purposes. Living trusts can be revocable or irrevocable. A testamentary trust is typically included in a person’s Last Will and Testament as a tool to manage and protect assets for a beneficiary, in lieu of giving the beneficiary assets outright.

Timeframes vary from client to client. The typical process for a simple estate plan includes one to two meetings with an attorney to develop a person’s estate planning documents, and one meeting to sign the estate planning documents. Typically, the process may be anywhere from one to two months, though we are available to work at the pace of each of our clients, and can tailor our timeframes to meet individualized needs.

Yes, our firm regularly revises or adds to estate plans created by attorneys from other firms.

Generally, we recommend reviewing your estate planning documents every few years, or at any major life event. Though our estate plans are built flexibly to provide for the many contingencies in a person’s life, it is important to periodically review your documents to ensure they continue to reflect your wishes.

The administration of most estates involves a court proceeding whereby a fiduciary is appointed to a deceased person’s estate, and empowered to collect and distribute the assets of the deceased. When a person dies with a valid Last Will and Testament, the fiduciary is called an Executor. Once formally appointed by the appropriate Court, the Executor distributes the deceased person’s assets in accordance with the Last Will and Testament. When a person dies without a Last Will and Testament, the fiduciary is called an Administrator in New York State. The Administrator distributes a person’s assets in accordance with applicable state law. See https://www.nycourts.gov/courthelp/whensomeonedies/intestacy.shtml for further information regarding the distribution of assets when a person dies without a Last Will and Testament in New York State.

While “probate is popularly used to describe the entire administration of an estate, technically, "probate" refers only to the legal proceeding by which an instrument offered as a property owner's Last Will and Testament is found, in fact, to be that person's Will. Depending on the circumstances, that proceeding can either be simplified or formal, expensive or inexpensive. For instance, if there are disabled or incapacitated family members, probate may involve the appointment of an attorney to serve as “guardian ad litem” for such person, which will result in additional expenses and time. If a family member whose consent is required to probate the Will is disinherited, they may contest the probate proceeding, which can be quite expensive and time consuming.

A Trust contains directions for how assets should be held and distributed, and names a Trustee to manage the assets and adhere to those directions. The Trustee’s process in managing the Trust and following those directions is referred to as the administration of the Trust. Depending on the specific facts and circumstances, this process may be simple or complex, and may or may not be subject to court oversight.

There is no requirement to use an attorney to prepare a Will or Trust, but as with any legal document, we highly recommend against doing it on your own. Estate and trust laws are complex, and we have found that online estate planning programs fail to adequately educate users, and as a result are unable to tailor a person’s documents to function appropriately under such laws. In addition, a Will has to be executed in a certain manner with required formalities. The failure to follow the proper procedure may result in the Will being invalid. Unfortunately, these mistakes typically only come to light after a person has passed away, making it too late to rectify such issues.

Our fees vary based on the scope and complexity of the work involved. After an initial free consultation, our attorneys will be able to quote you a fee for the work required. Most estate planning matters are handled on a fixed fee basis. Most estate and trust administration matters are handled on an hourly basis.

Feel free to call our office at (212) 979-9300 or email us at info@bouklaslaw.com to schedule an initial consultation.

Keep your Will in a safe yet accessible place, as it is crucial to the probate process. Upon your death the original Will must be produced in order to probate it. We advise against a safe deposit box as the bank will “freeze” the box at the death of an owner (even if there is a joint owner on the box). A good choice would be a waterproof and fireproof safe in your home. With that said, our firm offers every client complimentary housing and storage of all original Wills in a safe and secure offsite location protected by water resistant, fireproof, and insulated filing cabinets.