New York Estate Planning Guide for New Immigrants

If you are a new immigrant, a green-card holder, or a non-citizen with family or property in New York, the short answer is this: you can absolutely create a valid New York estate plan regardless of your immigration status, but a few avoidable mistakes can cost your family a will contest, a surprise estate-tax bill, or a frozen inheritance. This guide focuses on those pitfalls — what new New Yorkers get wrong, and how to fix each one before it becomes expensive. The single most important thing to understand up front: estate planning is governed by New York state law, while immigration is governed by federal law, and conflating the two is the first and most common error.

Mistake #1: Assuming Your Foreign Will Covers Your New York Assets

Many immigrants arrive with a will drafted abroad and assume it protects their New York home or bank accounts. A New York will must satisfy EPTL §3-2.1 — the testator signs at the end, two attesting witnesses are required, and the testator must “publish” the document by declaring it to be their will. A document that does not meet these formalities risks being rejected by the Surrogate’s Court. If you die without a valid will, New York’s intestacy rules (EPTL Article 4) decide who inherits, and the result may not match your wishes — especially in blended or transnational families.

Good news for worried relatives abroad: foreign heirs and beneficiaries can inherit New York property. Non-resident or non-citizen status does not bar an inheritance. It simply adds documentation and tax-withholding steps, so build that into your plan rather than discovering it later.

Mistake #2: Forgetting the Non-Citizen Spouse Trap (the QDOT)

This is the most expensive mistake on the list. For U.S. citizen spouses, the unlimited marital deduction lets assets pass to a surviving spouse free of federal estate tax. That deduction does not apply when the surviving spouse is not a U.S. citizen. Without planning, assets left to a non-citizen spouse can trigger tax that a citizen spouse would never face.

The standard fix is a QDOT (Qualified Domestic Trust). It is a specialized trust designed to preserve the marital deduction for a non-citizen surviving spouse. If one spouse is a citizen and the other is not — common in immigrant families — this is the single conversation you should not skip.

Mistake #3: Choosing the Wrong Trust (or No Trust)

Trusts in New York are governed by EPTL Article 7, and choosing the wrong type wastes money. A quick comparison:

Note the Medicaid 5-year look-back: transfers into an irrevocable trust must be made well in advance of needing long-term care. Learn more about how these structures work on our trusts page.

Mistake #4: Skipping the Documents That Work While You’re Alive

Estate planning is not only about death. Two New York documents protect you during incapacity, and immigrants often overlook them. A durable power of attorney under GOL §5-1513 (the 2021 statutory short form) lets a trusted person manage your finances if you cannot. A health care proxy under Public Health Law Article 29-C names someone to make medical decisions for you. Both are especially valuable when family members live overseas. Review our pages on the power of attorney and the healthcare proxy to see how each one works in New York.

Mistake #5: Asking One Lawyer to Solve Both Problems

Estate planning (state law) and immigration (federal law) are separate practice areas, and the honest takeaway is to use the right specialist for each. Our firm handles New York estate and estate-planning matters. For the federal immigration side — visas, green cards, citizenship, and status questions — families should consult a Miami-based immigration law firm. Because immigration is federal, an immigration attorney can represent clients in any state, including New York; Fitenko Law serves Russian- and Ukrainian-speaking families and others across Miami and South Florida. We do not predict approvals or quote government fees — that belongs with your immigration counsel.

Frequently Asked Questions

Can I make a valid New York will if I am not a citizen?
Yes. Immigration status does not affect your right to create a will. The will simply must meet New York’s signing and witnessing requirements under EPTL §3-2.1.

Can my relatives abroad inherit my New York property?
Yes. Non-resident, non-citizen heirs can inherit New York property. Expect extra documentation and possible tax-withholding steps, which your attorney can plan for.

Do I really need a QDOT?
If your surviving spouse is not a U.S. citizen, a QDOT is the standard tool to preserve the marital deduction. Discuss it with your estate attorney early.

Will the New York estate tax affect me?
For 2026, the basic exclusion is $7,350,000, but New York has a “cliff” at 105% — $7,717,500. An estate over the cliff loses the entire exemption, so larger estates need careful planning.

Next Steps

For the New York estate and estate-planning side — wills, trusts, QDOTs, powers of attorney, and Surrogate’s Court matters — consult Morgan Legal Group. You can schedule a consultation directly at calendly.com/russel-morgan/30min, or start by reviewing our trusts page. 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 half of the puzzle is the surest way to avoid the costly mistakes outlined here.