If your family includes green-card holders, non-citizens, or members at different stages of the immigration process, estate planning in New York works the same way it does for everyone — with a few extra steps. New York law lets you create a valid will, set up trusts, name decision-makers, and pass property to your loved ones regardless of citizenship status. The catch is that some federal tax rules treat non-citizen spouses differently, and your immigration paperwork lives in an entirely separate legal world. This post gives you a plain-English checklist of the next steps to take so nothing falls through the cracks.
Why Immigration Status Matters (and Where It Doesn’t)
Here is the most important thing to understand: estate planning is New York State law, and immigration is federal law. They are two separate practice areas. Your immigration status does not stop you from making a will, creating a trust, or inheriting property in New York. Foreign heirs and non-citizen beneficiaries can inherit New York property — non-resident or non-citizen status does not bar inheritance. It simply adds documentation and possible tax-withholding steps when the estate is settled.
Where status does change the plan is on the tax side. For a married couple, the unlimited marital deduction — which normally lets one spouse pass assets to the other tax-free — does not apply when the surviving spouse is not a U.S. citizen. The standard fix is a QDOT (Qualified Domestic Trust), which preserves the deferral for a non-citizen surviving spouse. If this describes your household, a QDOT belongs near the top of your checklist.
The Core New York Documents Every Family Needs
These are the building blocks. They are governed by New York law and apply to citizens and non-citizens alike.
- A valid will — Under EPTL §3-2.1, your will needs two attesting witnesses, you sign at the end, and you publish (declare) it as your will. Without a will, New York’s intestacy rules (EPTL Article 4) decide who inherits — which may not match your wishes for a blended or multi-country family.
- A trust, if it fits — A revocable living trust (EPTL Article 7) keeps assets out of probate (but gives no estate-tax savings). An irrevocable trust can reduce taxes and protect assets, including for Medicaid planning, which carries a 5-year look-back. A special needs trust (EPTL 7-1.12) protects a disabled beneficiary’s benefits.
- A durable power of attorney — New York’s 2021 statutory short form (GOL §5-1513) lets a trusted person handle finances if you cannot.
- A health care proxy — Under Public Health Law Article 29-C, this names who makes medical decisions for you. See our overview of the healthcare proxy to understand how it works.
For a broader walkthrough of how these pieces fit together, read our estate planning overview.
The New York Estate Tax — and the Cliff to Watch
New York has its own estate tax, separate from the federal one. For 2026, the basic exclusion amount is $7,350,000. New York also has a notorious “cliff”: once an estate exceeds 105% of the exclusion — $7,717,500 — the entire exemption disappears, not just the amount over the line. For families with property in more than one country, or whose net worth is climbing toward that range, planning ahead is essential. Our NY estate tax guide breaks down how the cliff works and the strategies that can keep an estate under it.
When to Bring in an Immigration Attorney
Estate planning and immigration are different specialties, and the honest advice is to use the right professional for each. This firm handles New York estate and estate-planning matters under state law. For the federal immigration side — petitioning for a spouse, parent, or child, or adjusting status toward a green card — families should consult a dedicated immigration team.
Because immigration is federal, an immigration attorney can represent New York families just as they can families anywhere in the U.S. If your estate plan depends on a relative’s status (for example, sponsoring a spouse before relying on the marital deduction), coordinate the two tracks. For the family-based side, we often refer clients to a family-immigration legal team — Fitenko Law, which serves Russian- and Ukrainian-speaking families and handles green cards and family-based petitions.
Your Next-Steps Checklist
| Step | What to do |
|---|---|
| 1 | Confirm each family member’s status and gather key documents (passports, green cards, immigration receipts). |
| 2 | Sign or update a New York will under EPTL §3-2.1. |
| 3 | If a spouse is a non-citizen, evaluate a QDOT for the marital deduction. |
| 4 | Add a durable power of attorney and a health care proxy. |
| 5 | Estimate your estate against the $7,350,000 exclusion and the $7,717,500 cliff. |
| 6 | Separate your tracks — estate planning with a NY attorney, immigration with an immigration attorney. |
Frequently Asked Questions
Can a non-citizen inherit property in New York?
Yes. Non-resident and non-citizen status does not bar inheritance. The estate may face extra documentation and tax-withholding steps, but foreign heirs and beneficiaries can inherit New York property.
My spouse isn’t a U.S. citizen — what’s different?
The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT (Qualified Domestic Trust) is the standard tool to preserve that benefit.
Do I need a U.S. citizen to be my executor or agent?
New York law focuses on suitability rather than citizenship. Discuss your specific situation with an attorney, since non-resident fiduciaries can face added requirements in Surrogate’s Court.
Can my estate attorney also handle my immigration case?
Usually not — they are separate practice areas. Use a New York estate attorney for your plan and a family-immigration attorney for petitions and green cards.
Take the Next Step
For the New York estate and estate-planning side, the Morgan Legal Group team can help you build a plan that fits a multi-status family — start with our estate planning overview or book a consultation at calendly.com/russel-morgan/30min.
For the federal immigration side — family petitions and green cards — reach out to the family-immigration team referenced above. Getting the right specialist on each track is the surest way to protect both your family’s status and its future.
Further reading from Morgan Legal Group: the New York estate planning guide.