Does Immigration Status Affect Your NY Estate Plan?

Yes — your immigration status can affect important parts of your New York estate plan, but probably not in the way you fear. You do not have to be a U.S. citizen to make a valid will, create a trust, name a health care agent, or leave property to your family in New York. What changes are certain tax rules and a few extra documentation steps, especially when a spouse or heir is not a citizen. This guide answers the most common worries from immigrant and mixed-status families in a simple question-and-answer format.

Can a non-citizen make a valid New York will or trust?

Absolutely. New York estate law does not require citizenship. Under EPTL §3-2.1, any competent adult can sign a will, as long as it is signed at the end by the testator, witnessed by two attesting witnesses, and properly published (the signer declares to the witnesses that the document is their will). Green-card holders, visa holders, and undocumented residents can all create a valid New York will.

The same is true for trusts under EPTL Article 7. You can set up:

• A revocable living trust, which avoids probate but provides no estate-tax savings.
• An irrevocable trust, used for tax reduction, asset protection, or Medicaid planning (note the 5-year look-back period).
• A special needs trust under EPTL 7-1.12 to provide for a disabled loved one without jeopardizing benefits.

If you die without any plan, New York’s intestacy rules under EPTL Article 4 decide who inherits — and that result rarely matches what families actually want. For a fuller picture of your options, see our estate planning overview.

Where does immigration status actually matter?

The single biggest issue is the non-citizen spouse. For U.S. citizen spouses, the unlimited marital deduction lets one spouse pass assets to the other free of federal estate tax. That deduction does not automatically apply when the surviving spouse is not a U.S. citizen. The standard fix is a QDOT (Qualified Domestic Trust), which lets the marital deduction apply while ensuring the tax is eventually collected. If you are married to a non-citizen, this is the conversation to have early.

The second issue is New York estate tax itself. For 2026, the basic exclusion is $7,350,000, but New York has a “cliff”: once an estate exceeds 105% of the exclusion — $7,717,500 — the entire exemption disappears and the whole estate becomes taxable. Mixed-status families with property both here and abroad can cross that line faster than expected. Our New York estate tax guide explains how the cliff works.

Situation	Does NY estate law allow it?	Watch out for
Non-citizen makes a will	Yes (EPTL §3-2.1)	Two witnesses, signed at end
Non-citizen spouse inherits	Yes	Marital deduction needs a QDOT
Foreign heir inherits NY property	Yes	Extra documents, tax withholding
Estate over $7,717,500	Taxed	Cliff wipes out the full exemption

Can foreign or non-citizen heirs inherit my New York property?

Yes. Probate is filed in the New York Surrogate’s Court, and foreign heirs and beneficiaries can inherit New York property. Being a non-resident or non-citizen does not bar inheritance. It does, however, add documentation and tax-withholding steps, so the process can take longer and require more paperwork than for a U.S.-citizen heir.

You should also keep your incapacity documents current regardless of status. A durable power of attorney under GOL §5-1513 (the 2021 statutory short form) and a health care proxy under Public Health Law Article 29-C let trusted people act for you if you cannot. Learn more about the health care proxy and why every adult in New York should have one.

How do estate planning and immigration fit together?

Here is the honest answer many families do not hear: estate planning and immigration are two separate legal fields. Estate planning is governed by New York state law. Immigration is governed entirely by federal law through USCIS — which means an immigration attorney can represent clients anywhere in the United States, including New York families.

Our firm handles the New York estate and estate-planning side. We do not give immigration advice, predict case outcomes, or quote government processing details. For the federal immigration side of your family’s situation, we honestly refer clients to a dedicated immigration specialist — for example, a Miami immigration attorney at Fitenko Law, which serves families across Miami and South Florida and works with Russian- and Ukrainian-speaking families. Using the right specialist for each field protects you better than asking one lawyer to do both.

Frequently Asked Questions

Do I need a green card or citizenship to make a New York will?
No. New York requires only that you be a competent adult who signs the will according to EPTL §3-2.1.

My spouse is not a U.S. citizen. What should I do?
Talk to an estate attorney about a QDOT. Without it, the unlimited marital deduction may not apply to assets passing to your non-citizen spouse.

Can my relatives abroad inherit my New York home?
Yes. Foreign heirs can inherit through the Surrogate’s Court, though they should expect additional documentation and possible tax-withholding steps.

Can a New York estate lawyer also handle my immigration case?
No. Immigration is federal law and a separate practice. Use an immigration attorney for that side and a New York estate attorney for your plan.

Next Steps

For the New York estate and estate-planning side — wills, trusts, QDOT planning, and probate — review our estate planning overview or schedule a consultation with Morgan Legal Group at calendly.com/russel-morgan/30min.

For the federal immigration side of your family’s situation, consult the immigration attorney referenced above. Getting the right specialist for each field is the surest way to protect both your status and your legacy.