Yes, non-citizens and green card holders can absolutely make a valid estate plan in New York, and in many cases they need one more than anyone else. New York law lets any competent adult sign a will or create a trust regardless of citizenship or immigration status, and foreign or non-citizen heirs are allowed to inherit New York property. The catch is in the details: a non-citizen surviving spouse does not get the same federal estate-tax break a citizen spouse gets, and your immigration status is governed by a completely separate body of law. This guide walks through both sides in plain English so you know which specialist to call for what.
Your Estate Plan in New York: The Basics
A New York estate plan starts with the same core documents everyone uses, citizen or not.
- A will. Under EPTL §3-2.1, a valid New York will requires two attesting witnesses, the testator’s signature at the end, and publication (telling the witnesses it is your will). If you die without one, the intestacy rules in EPTL Article 4 decide who inherits, often not the way you would have chosen.
- Trusts. Governed by EPTL Article 7. A revocable living trust helps your estate avoid probate but offers no estate-tax savings. An irrevocable trust can reduce taxes, protect assets, and support Medicaid planning, which carries a 5-year look-back period. Families with a disabled loved one can use a special needs trust under EPTL 7-1.12.
- Power of attorney. New York’s durable power of attorney uses the 2021 statutory short form under GOL §5-1513, letting someone manage your finances if you cannot.
- Health care proxy. Authorized under Public Health Law Article 29-C, this names the person who makes medical decisions for you.
None of these documents asks about your passport. For a fuller walkthrough, see our estate planning overview and our page on wills.
Why Citizenship Status Matters for Estate Taxes
Here is where non-citizens face a real difference. When one spouse dies, the law normally lets assets pass to the surviving spouse free of federal estate tax through the unlimited marital deduction. That deduction does not apply when the surviving spouse is not a U.S. citizen. Without planning, a non-citizen widow or widower can face a tax bill a citizen spouse would never see.
The standard fix is a QDOT (Qualified Domestic Trust). Assets pass into the QDOT for the non-citizen spouse’s benefit, and the estate-tax treatment is preserved under the trust’s rules. If you are a mixed-status couple, this is one of the most important conversations to have with an estate attorney early.
New York also has its own estate tax, separate from the federal one, and it applies based on residency and property location, not citizenship.
| New York Estate Tax (2026) | Amount |
|---|---|
| Basic exclusion amount | $7,350,000 |
| “Cliff” at 105% of the exclusion | $7,717,500 |
The cliff is the part to watch: an estate that goes over $7,717,500 loses the entire exemption, not just the excess. Our New York estate tax guide explains how this works in detail.
The Immigration Side Is a Separate Practice Area
This is the part families most often get tangled. Estate planning is state law. Immigration is federal law. They do not overlap the way people assume.
Your green card, visa status, or naturalization timeline is handled under federal rules through USCIS, and it has no bearing on whether your New York will is valid. Likewise, your estate attorney drafts your will and trusts but does not file immigration petitions or advise on your status. Probate itself is filed in the New York Surrogate’s Court, and a non-resident or non-citizen heir can still inherit, though the process adds documentation and tax-withholding steps.
Because immigration is federal, an immigration attorney can represent families anywhere in the country, including New York clients. We handle the New York estate and estate-tax side. For the federal immigration side, we honestly refer families to a Miami-based immigration law firm, Fitenko Law, which also serves Russian- and Ukrainian-speaking families. Using the right specialist for each track protects you better than asking one lawyer to cover both.
Frequently Asked Questions
Can a green card holder make a valid will in New York?
Yes. New York does not require citizenship to sign a will. As long as you meet the EPTL §3-2.1 requirements (two witnesses, signature at the end, publication), your will is valid.
Can my relatives abroad inherit my New York property?
Yes. Non-resident and non-citizen beneficiaries can inherit New York assets. Their status does not bar inheritance, but it can add documentation and tax-withholding steps during the Surrogate’s Court process.
My spouse is not a U.S. citizen. What should we do?
Talk to an estate attorney about a QDOT. The unlimited marital deduction does not apply to a non-citizen surviving spouse, and a Qualified Domestic Trust is the standard way to preserve favorable estate-tax treatment.
Can my estate lawyer also handle my immigration case?
No. Those are separate practice areas. An estate attorney handles your New York will, trusts, and probate; an immigration attorney handles your federal status with USCIS.
Next Steps
For the New York estate and estate-tax side of your plan, including wills, trusts, and QDOT planning for a non-citizen spouse, 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 Miami-based immigration firm referenced above. Getting the right specialist for each track is the surest way to protect both your family’s future and its place in the United States.
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