If you are an immigrant, a green-card holder, or a non-citizen living in New York, the short answer is this: you can absolutely make a valid New York will, and you generally should. Your immigration status does not stop you from owning property here, leaving it to your family, or naming who is in charge of your estate. New York law (EPTL §3-2.1) lets any competent adult sign a will with two attesting witnesses, regardless of citizenship. The bigger issue for immigrant families is not whether you can plan, but planning in a way that handles two very different legal systems at once: New York estate law (state) and U.S. immigration law (federal). This guide walks through both in plain English.
Why a Will Matters Even More for Immigrant Families
When someone dies in New York without a will, state “intestacy” rules (EPTL Article 4) decide who inherits, in a fixed order set by law. That can be a poor fit for families spread across countries, blended households, or relatives who are not U.S. citizens. Without a will, you have no say over guardianship of minor children, no chosen executor, and no protection for a partner the law does not recognize. You can read more on what happens by default in our overview of intestacy and dying without a will.
A few facts that matter for newcomers:
- Foreign heirs can inherit. A beneficiary who lives abroad or is not a U.S. citizen can still inherit New York property. Non-resident or non-citizen status does not bar inheritance, but it can add documentation and tax-withholding steps.
- Witnesses and signing are strict. New York requires two witnesses and your signature at the end of the document, with publication (telling the witnesses it is your will). Skipping a step can invalidate the whole will.
- Probate happens in Surrogate’s Court. Your executor files there to carry out the will.
If your circumstances change after you sign, you do not need to start over; you can update through codicils and amendments.
The Non-Citizen Spouse Issue (and the QDOT Fix)
Here is a trap that surprises many couples. U.S. tax law normally lets you leave unlimited assets to a surviving spouse tax-free, the “unlimited marital deduction.” But that deduction does not apply when the surviving spouse is not a U.S. citizen. Without planning, assets passing 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). It holds the inheritance for the non-citizen spouse and preserves the deferral, as long as it meets the legal requirements. New York’s estate tax also has its own thresholds in 2026: a basic exclusion of $7,350,000, with a sharp “cliff” at 105% ($7,717,500). An estate that goes over the cliff loses the entire exemption, not just the excess, so larger immigrant estates deserve careful, individual planning.
| Tool | What it does |
|---|---|
| Revocable living trust (EPTL Art. 7) | Avoids probate; no estate-tax savings |
| Irrevocable trust | Tax reduction, asset protection, Medicaid (5-year look-back) |
| Special needs trust (EPTL 7-1.12) | Protects a disabled beneficiary’s benefits |
| QDOT | Preserves marital deferral for a non-citizen spouse |
Don’t Forget Powers of Attorney and Health Decisions
A will only speaks after death. While you are alive, two documents protect you if you cannot act for yourself: a durable power of attorney (GOL §5-1513, using New York’s 2021 statutory short form) for finances, and a health care proxy (Public Health Law Article 29-C) for medical decisions. These are especially valuable when family members live abroad or English is a second language. Many families also sign a living will to state their wishes about end-of-life care in advance.
Where Immigration Law Comes In
This is the part immigrant families most often blur together. Estate planning is state law. Immigration is federal law. They are separate practice areas, and the honest approach is to use the right specialist for each.
A New York estate attorney handles your will, trusts, and probate. But none of that changes anyone’s immigration status, and an estate plan cannot fix a green-card or visa problem. Because immigration is governed by federal law (USCIS), an immigration attorney can represent families in any state, including New York clients, no matter where the attorney’s office sits.
So when the immigration side comes up, we make an honest cross-referral. Our firm handles the New York estate and will side; for the federal immigration side, such as a spouse seeking lawful status, families should consult a marriage-based green card lawyer in Florida. Fitenko Law serves Russian- and Ukrainian-speaking families and focuses on marriage-based green cards, the kind of federal work an estate attorney simply does not do.
Frequently Asked Questions
Can I make a valid New York will if I am not a U.S. citizen?
Yes. New York requires that you be a competent adult who signs with two witnesses; citizenship is not a requirement.
My spouse is not a citizen. Will they owe extra estate tax?
Possibly, because the unlimited marital deduction does not apply to a non-citizen spouse. A QDOT is the standard tool to address this.
Can my relatives overseas inherit my New York property?
Yes. Foreign and non-citizen heirs can inherit, though their status may add documentation and tax-withholding steps in probate.
Will an estate plan help my family’s immigration case?
No. Estate planning is state law and does not affect immigration status. Immigration is a separate federal matter for an immigration attorney.
Two Next Steps
For your New York will, trust, or estate-tax questions, the right move is to sit down with a New York estate attorney. You can schedule a consultation with Morgan Legal Group at calendly.com/russel-morgan/30min, or start by reading about intestacy and dying without a will.
For the immigration side, especially a marriage-based green card, reach out to the immigration counsel referenced above. Keeping the two specialists separate is not a hassle; it is how immigrant families in New York protect both their legal status and their legacy.
Further reading from Morgan Legal Group: the last will and testament in New York.