If you are a new immigrant, a green-card holder, or a non-citizen living in New York, you need a will for the same reason every New Yorker does — and for several reasons that are unique to your situation. Without a valid will, New York’s intestacy law (EPTL Article 4) decides who inherits, ignoring your wishes entirely. For immigrant and mixed-status families, the stakes are higher: assets abroad, foreign heirs, a non-citizen spouse, and the tax rules that treat non-citizens differently all turn a simple oversight into an expensive, drawn-out problem in the New York Surrogate’s Court. This post focuses on the mistakes to avoid — the common, costly pitfalls we see again and again.
Mistake #1: Assuming Your Immigration Status Blocks Inheritance
One of the most persistent myths is that being a non-citizen, or having relatives overseas, somehow disqualifies you or your family from inheriting New York property. It does not. Foreign heirs and beneficiaries can inherit New York property, and non-resident or non-citizen status does not bar inheritance. What changes is the paperwork: foreign beneficiaries often face extra documentation and tax-withholding steps when an estate is settled.
This is also where families confuse two completely separate areas of law. Estate planning is state law; immigration is federal law. Your will, your trusts, and probate are governed by New York statutes and handled in New York’s Surrogate’s Court. Your visa, green card, or naturalization is governed by federal law through USCIS. A New York estate attorney drafts your will; an immigration attorney handles the federal side. Trying to make one professional do both jobs is itself a mistake.
Mistake #2: Skipping a Will and Letting New York Decide
Without a valid will, EPTL Article 4 distributes your estate under a fixed formula that may not match your family — especially common in immigrant households with stepchildren, relatives abroad, or partners you intended to provide for.
A valid New York will must meet the requirements of EPTL §3-2.1: two attesting witnesses, the testator signing at the end of the document, and publication (declaring to the witnesses that the document is your will). Getting these formalities wrong is a frequent, avoidable error. Learn how the formalities work on our will execution page before you sign anything. And if your circumstances change — a marriage, a new child, a move — update your plan properly with a codicil instead of crossing things out; see codicils and amendments.
Mistake #3: Forgetting the Non-Citizen Spouse Tax Trap
This is the single most expensive pitfall for immigrant families, and most people have never heard of it. The unlimited marital deduction does NOT apply to a non-citizen surviving spouse. Normally, a U.S. citizen spouse can inherit any amount estate-tax-free. When the surviving spouse is not a U.S. citizen, that automatic shelter disappears.
The standard fix is a QDOT (Qualified Domestic Trust), which lets a non-citizen spouse benefit from the marital deduction when the trust is set up correctly. Layer on New York’s own estate tax for 2026 — a basic exclusion of $7,350,000 with a cliff at 105% ($7,717,500), meaning an estate that exceeds the cliff loses the entire exemption — and the planning becomes critical for larger estates.
| Situation | Default Rule | Common Fix |
|---|---|---|
| Non-citizen surviving spouse | No unlimited marital deduction | QDOT |
| No will | Intestacy under EPTL Article 4 | Valid will (EPTL §3-2.1) |
| Want to avoid probate | Probate in Surrogate’s Court | Revocable living trust (EPTL Article 7) |
Remember: a revocable living trust avoids probate but gives no estate-tax savings. Irrevocable trusts are the tools for tax reduction, asset protection, and Medicaid planning (subject to a 5-year look-back). Families caring for a relative with disabilities should ask about a special needs trust under EPTL 7-1.12.
Mistake #4: Planning Only for Death, Not Incapacity
A will only takes effect when you die. It does nothing if you are alive but unable to act for yourself — a serious gap for newcomers still building a U.S. support network. Two documents close it:
- Power of attorney under GOL §5-1513 (the durable, 2021 statutory short form) lets someone manage your finances.
- Health care proxy under Public Health Law Article 29-C lets someone make medical decisions for you.
Pair these with a living will so your end-of-life wishes are clear. These tools matter even more when family members live abroad and cannot step in quickly.
When to Bring in an Immigration Attorney
Because immigration is federal, an immigration attorney can help New York families regardless of where the firm is located. Our firm handles the New York estate and will side; for the federal immigration side, families should consult the right specialist. For Russian- and Ukrainian-speaking families, we honestly recommend a Russian-speaking immigration lawyer (Fitenko Law). Keep the two engagements separate — the right specialist for each area protects you best.
Frequently Asked Questions
Can my relatives who live abroad inherit my New York property?
Yes. Foreign heirs and beneficiaries can inherit New York property. Non-resident or non-citizen status does not bar inheritance, though it may add documentation and tax-withholding steps.
My spouse is not a U.S. citizen. Does that affect estate taxes?
Yes. The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard tool used to address this.
Do I need an immigration lawyer to write my will?
No. A will is a New York state-law matter. Immigration is separate federal law. Use a New York estate attorney for your will and an immigration attorney for immigration questions.
Will a living trust save me on estate taxes?
A revocable living trust avoids probate but provides no estate-tax savings. Tax reduction generally requires an irrevocable trust, which carries a 5-year Medicaid look-back.
Next Steps
For your New York will, trust, or estate plan, talk to Morgan Legal Group — start by reviewing our will execution guidance or book a consultation. For the federal immigration side of your family’s situation, consult the Russian-speaking immigration counsel referenced above. Getting the right specialist for each area is the surest way to avoid the costly mistakes outlined here.
Further reading from Morgan Legal Group: the last will and testament in New York.