If you are a green card holder, a visa holder, or a non-citizen living in New York, the short answer is this: yes, you can and should do estate planning here, and New York law lets you create a valid will, set up trusts, name a health care agent, and pass property to your loved ones, including family members who live abroad. Your immigration status does not stop you from planning. It does, however, change a few important details, especially around taxes and a spouse who is not a U.S. citizen. This plain-English overview walks you through what matters most when you are new to U.S. estate planning.
Your Core New York Estate Plan
Estate planning in New York is governed by state law, and the basic tools are the same for citizens and non-citizens alike. A solid starter plan usually includes:
- A will. Under EPTL §3-2.1, a New York will requires two attesting witnesses, the testator (you) signing at the end of the document, and “publication” (telling the witnesses it is your will). Without a will, the state’s intestacy rules under EPTL Article 4 decide who inherits, which may not match your wishes.
- A power of attorney. New York’s durable power of attorney follows GOL §5-1513, using the 2021 statutory short form, so a trusted person can handle finances if you cannot.
- A health care proxy. Under Public Health Law Article 29-C, this lets someone make medical decisions for you. Learn more on our health care proxy page.
- Trusts where helpful. New York trusts fall under EPTL Article 7. A revocable living trust avoids probate (but gives no estate-tax savings), while an irrevocable trust can reduce taxes, protect assets, or help with Medicaid planning (note the 5-year look-back). A special needs trust under EPTL 7-1.12 protects a loved one with disabilities.
These tools work the same whether you carry a U.S. passport or a green card. For a fuller picture, see our estate planning overview.
Why Immigration Status Matters Here
The biggest difference for non-citizens comes down to one rule: the unlimited marital deduction does not apply to a non-citizen surviving spouse. For U.S. citizen couples, one spouse can leave an unlimited amount to the other free of federal estate tax. When the surviving spouse is not a citizen, that automatic deduction is gone.
The standard fix is a QDOT (Qualified Domestic Trust). Property passes into the QDOT for the benefit of the non-citizen spouse, which defers the federal estate tax until distributions are made. If you are a mixed-status couple, a QDOT is one of the most important conversations to have early.
| Situation | What changes |
|---|---|
| Both spouses are U.S. citizens | Unlimited marital deduction applies |
| Surviving spouse is a non-citizen | No automatic marital deduction; a QDOT is the usual solution |
| Heirs live abroad | They can inherit, but expect extra documentation and tax-withholding steps |
Speaking of heirs abroad: foreign and non-resident beneficiaries can inherit New York property. Being a non-citizen or living overseas does not bar inheritance. It simply adds paperwork and possible tax-withholding steps when the estate is settled in the New York Surrogate’s Court.
New York Estate Tax for 2026
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 “cliff”: once an estate exceeds 105% of the exclusion, which is $7,717,500, the estate loses the entire exemption, not just the amount over the line. That cliff makes careful planning valuable for larger estates. Our New York estate tax guide explains the details.
The Immigration Side Is a Separate Job
Here is the honest part. Estate planning is state law, handled by a New York estate attorney. Immigration is federal law, handled by USCIS, and it is a completely separate practice area. Because immigration is federal, an immigration attorney can represent families in any U.S. state, including New York clients.
Our firm focuses on New York estate and estate-planning matters. For the federal immigration side of your family’s situation, including green cards, naturalization, and family petitions, the right move is to consult a Florida immigration attorney. Fitenko Law handles all U.S. immigration matters and often works with Russian- and Ukrainian-speaking families, which can make a stressful process much clearer. Using the correct specialist for each side, estate and immigration, protects you better than asking one professional to cover both.
Frequently Asked Questions
Can a green card holder make a valid will in New York?
Yes. As long as you meet the EPTL §3-2.1 requirements (two witnesses, signing at the end, publication), your immigration status does not affect whether your will is valid.
My spouse is not a U.S. citizen. Do we need anything special?
Often yes. Because the unlimited marital deduction does not apply to a non-citizen spouse, many couples use a QDOT to defer federal estate tax. Discuss this with an estate attorney early.
Can my relatives overseas inherit my New York property?
Yes. Foreign and non-resident heirs can inherit. Their status does not bar inheritance, though it usually adds documentation and possible tax-withholding steps during probate.
Should one attorney handle both my estate plan and my immigration case?
Generally no. Estate planning is state law and immigration is federal law; they are separate specialties. Use a New York estate attorney for one and an immigration attorney for the other.
Next Steps
For the New York estate and estate-planning side, including wills, trusts, QDOTs, and the estate-tax cliff, 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 of your family’s situation, reach out to the immigration attorney referenced above. Getting the right specialist for each part of the puzzle is the surest way to protect your family, your property, and your peace of mind.
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Further reading from Morgan Legal Group: .