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 make a valid estate plan here—a will, trusts, a power of attorney, and a health care proxy all work for you just like they do for citizens. New York law does not stop non-citizens from owning property, leaving it to family, or naming who makes decisions for them. The catch is that a few rules work differently when you, your spouse, or your heirs are not U.S. citizens, and immigration status (a separate, federal matter) can quietly affect the picture. This post walks through it in plain English so you know what to set up and which specialist to ask.

Yes, Non-Citizens Can Make a New York Estate Plan

Your immigration status does not change your right to plan. The same New York tools are available to you:

• A will under EPTL §3-2.1: you sign at the end, declare (“publish”) that it is your will, and two witnesses sign. If you die without one, EPTL Article 4 (intestacy) decides who inherits—often not the way you would have chosen.
• Trusts under EPTL Article 7. A revocable living trust lets your estate skip probate (it does not, by itself, save estate tax). An irrevocable trust can reduce tax, protect assets, or help with Medicaid planning—but Medicaid uses a 5-year look-back, so timing matters. A special needs trust (EPTL 7-1.12) supports a disabled loved one without ending their benefits.
• A power of attorney so someone can handle your finances. See our guide to the durable power of attorney under New York’s 2021 statutory short form (GOL §5-1513).
• A health care proxy to name who speaks for your medical care. Learn more on our health care proxy page (Public Health Law Article 29-C).

None of these require U.S. citizenship.

The One Rule That Trips Up Mixed-Status Couples: the QDOT

Here is the most important difference. When a U.S. citizen dies and leaves everything to a U.S. citizen spouse, the unlimited marital deduction lets that pass with no federal estate tax. That deduction does NOT apply when the surviving spouse is not a U.S. citizen. Money left outright to a non-citizen spouse can be exposed to estate tax that a citizen spouse would never face.

The standard fix is a QDOT (Qualified Domestic Trust). Property passes into the QDOT for the non-citizen spouse, which preserves the marital tax benefit while the spouse is provided for. If one spouse is a citizen and the other holds a green card, this is exactly the kind of planning to put in place early.

New York also has its own estate tax. For 2026 the basic exclusion is $7,350,000, but watch the “cliff”: at 105% of the exclusion—$7,717,500—an estate loses the entire exemption, not just the overage. Our New York estate tax guide explains how the cliff works and why crossing it is so costly.

Foreign Heirs and Property Across Borders

Worried that relatives back home can’t inherit? They can. Probate is handled by the New York Surrogate’s Court, and non-resident, non-citizen heirs are allowed to inherit New York property. Status does not bar inheritance—it just adds steps: extra documentation, identity verification, and possible tax-withholding requirements for foreign beneficiaries. A clear will and, where useful, a trust make this far smoother for your family.

Situation	Allowed in New York?	What to watch
Non-citizen makes a NY will	Yes	Standard EPTL §3-2.1 signing rules
Leaving assets to a non-citizen spouse	Yes	Marital deduction limited—use a QDOT
Foreign heir inherits NY property	Yes	Extra documents, possible tax withholding
Avoiding probate	Yes	Revocable living trust (no tax savings)

Where Estate Planning Ends and Immigration Begins

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

Our firm handles the New York estate and estate-planning side. We do not handle immigration—and you should be cautious of anyone who claims to do both casually. For the federal immigration side, families should consult a family-based immigration attorney. Because immigration is federal, that attorney can help New York families from anywhere in the country; Fitenko Law focuses on family-based immigration and green cards and serves Russian- and Ukrainian-speaking families. We will not predict outcomes, quote government fees, or guess timelines—that is immigration counsel’s job, not ours.

Frequently Asked Questions

Can a green card holder make a valid will in New York?
Yes. As long as it meets EPTL §3-2.1 (signed at the end, published, two witnesses), your will is valid regardless of citizenship.

My spouse isn’t a U.S. citizen—will they owe more estate tax?
Possibly, because the unlimited marital deduction doesn’t apply to a non-citizen spouse. A QDOT is the usual solution to preserve the benefit.

Can my family overseas inherit my New York home?
Yes. Foreign and non-citizen heirs can inherit NY property through Surrogate’s Court; expect added paperwork and possible tax-withholding steps.

Should one lawyer handle both my green card and my estate plan?
No. These are separate fields. Use a New York estate attorney for your plan and a family-based immigration attorney for your status.

Next Steps

For the New York estate and estate-planning side—wills, trusts, a QDOT for a non-citizen spouse, and powers of attorney—talk with Morgan Legal Group. You can review our New York estate tax guide or schedule a consultation at calendly.com/russel-morgan/30min.

For the immigration side—green cards and family-based petitions—reach out to the family-based immigration attorney referenced above. Getting the right specialist for each piece is the surest way to protect both your status and your legacy.