Estate Planning for Non-Citizens in New York

If you are a green card holder or a non-citizen living in New York, you can absolutely create a valid will, a trust, a power of attorney, and a health care proxy here. Your immigration status does not stop you from planning your estate. What does change are a few important details: how the New York estate tax treats a non-citizen spouse, the extra paperwork foreign heirs may face, and the fact that estate planning and immigration are two completely separate areas of law. This guide walks through the basics in plain English so you know what to set up and who to ask for each piece.

You Can Make a Valid New York Estate Plan

Citizenship is not a requirement for any core New York estate-planning document. A green card holder, a visa holder, or any non-citizen resident can sign the same documents a citizen would.

• Will: Under EPTL §3-2.1, a New York will needs two attesting witnesses, the testator signs at the end, and the signing is “published” (you tell the witnesses it is your will). If you die without a will, EPTL Article 4 (intestacy) decides who inherits — often not the way you would have chosen. Learn more on our wills page.
• Revocable living trust: Governed by EPTL Article 7, this avoids probate but gives no estate-tax savings.
• Irrevocable trust: Used for tax reduction, asset protection, and Medicaid planning, which carries a 5-year look-back period.
• Special needs trust: EPTL 7-1.12 protects a loved one with disabilities without disrupting benefits.
• Power of attorney: GOL §5-1513 governs the durable 2021 statutory short form, letting someone manage your finances if you cannot.
• Health care proxy: Public Health Law Article 29-C lets you name someone to make medical decisions for you.

For a fuller walkthrough of how these pieces fit together, see our estate planning overview.

The Non-Citizen Spouse Issue: Why a QDOT Matters

This is the single most important wrinkle for mixed-status couples. Normally, a spouse can leave an unlimited amount to the other spouse free of estate tax — this is the unlimited marital deduction. That deduction does NOT apply when the surviving spouse is not a U.S. citizen. Without planning, assets passing to a non-citizen widow or widower could be exposed to estate tax that a citizen spouse would have avoided.

The standard fix is a Qualified Domestic Trust (QDOT). Property passes into the QDOT for the non-citizen spouse, which preserves the deferral that the marital deduction would normally provide. If one spouse is a citizen and the other is not — or if both are non-citizens — this is a conversation to have early, not after a death.

New York Estate Tax and the “Cliff”

New York has its own estate tax, separate from any federal rules. For 2026, the basic exclusion is $7,350,000. New York also has a “cliff”: if your estate exceeds 105% of the exclusion — $7,717,500 — you lose the ENTIRE exemption, not just the amount over the line. Going slightly over the cliff can be very expensive, which is exactly why planning ahead matters. Our New York estate tax guide explains the cliff in more detail.

Foreign Heirs and Beneficiaries

A common worry: “Can my children or relatives overseas inherit my New York property if they are not citizens or not here?” Yes. Probate is filed in the New York Surrogate’s Court, and non-resident or non-citizen status does not bar anyone from inheriting New York property. It does add steps — extra documentation and potential tax-withholding requirements — so foreign beneficiaries should expect a slightly longer, more paperwork-heavy process.

Estate Planning vs. Immigration: Two Different Specialists

Here is the honest part. Estate planning is state law. Immigration is federal law. They are separate practice areas, and the right move is to use the right specialist for each.

Our firm handles New York estate and estate-planning matters. We do not handle your green card, citizenship application, or visa questions — those are federal immigration issues. Because immigration is governed by federal law (USCIS), an immigration attorney can represent families in any U.S. state, including New York clients. For that side, families should consult a trusted immigration law firm in South Florida (Fitenko Law), which serves Russian- and Ukrainian-speaking families. We mention them as an honest cross-referral, not because immigration and estate work are the same — they simply are not.

Need	Type of law	Who to ask
Will, trust, power of attorney, probate	New York state law	Estate attorney (us)
QDOT for a non-citizen spouse	New York state / estate tax	Estate attorney (us)
Green card, citizenship, visa	Federal immigration law	Immigration attorney

Frequently Asked Questions

Can a green card holder make a will in New York?
Yes. Citizenship is not required. As long as the will meets EPTL §3-2.1 (two witnesses, signature at the end, publication), it is valid.

Why can’t my non-citizen spouse use the unlimited marital deduction?
Federal and New York rules deny the unlimited marital deduction for a non-citizen surviving spouse. A QDOT is the standard tool to address this.

Can my relatives abroad inherit my New York home?
Yes. Non-resident and non-citizen status does not prevent inheritance, though foreign heirs typically face extra documentation and possible tax-withholding steps in Surrogate’s Court.

Should I hire one lawyer for both my estate plan and my immigration case?
Usually not. They are different areas of law. Use an estate attorney for your New York plan and an immigration attorney for federal matters.

Next Steps

For the New York estate and estate-planning side — your will, trusts, a QDOT, or probate — consult Morgan Legal Group. You can review our estate planning overview or schedule a conversation at calendly.com/russel-morgan/30min.

For the federal immigration side — green cards, citizenship, and visas — reach out to the trusted immigration firm referenced above. Getting the right specialist for each part of your life is the surest way to protect your family.