If you are a new immigrant, green-card holder, or non-citizen living in New York, you need a will for the same reason every adult does — and for several reasons that are unique to your situation. Without a valid will, New York’s intestacy rules (EPTL Article 4), not your wishes, decide who inherits. For immigrant and mixed-status families, that default can be far worse than for U.S.-born households: a non-citizen surviving spouse can face a surprise estate-tax bill, foreign heirs can get tangled in extra paperwork, and assets back home can fall outside any plan. The good news is that every one of these problems is avoidable. This post focuses on the common, costly mistakes new immigrants make — and how to sidestep them.
Mistake #1: Assuming Your Immigration Status Decides Who Inherits
It does not. Estate planning is governed by New York State law, while immigration is governed by federal law (USCIS). These are two separate legal systems, and confusing them is the first expensive error.
Your citizenship or visa status does not bar you from making a New York will, and it does not stop foreign or non-resident heirs from inheriting your New York property. A child abroad, a spouse on a pending green card, or a parent who is not a citizen can all inherit. What changes for non-residents and non-citizens is the paperwork — additional documentation and possible tax-withholding steps when assets pass to people outside the U.S. A properly drafted will anticipates this; intestacy does not. Before you do anything else, review the basics on our NY will requirements page so your document is valid from the start.
Mistake #2: Letting New York’s Intestacy Rules Decide for You
When you die without a will in New York, EPTL Article 4 distributes your estate by a fixed formula — regardless of what you would have wanted. For blended and mixed-status families, this is a frequent disaster: an unmarried partner receives nothing, stepchildren may be excluded, and assets can be split in ways that strand a vulnerable family member.
A will fixes this, but only if it is executed correctly. Under EPTL §3-2.1, a valid New York will requires:
- The testator signs at the end of the document
- Two attesting witnesses
- Publication — the testator declares to the witnesses that the document is their will
Get the formalities wrong and the will fails, sending you right back to intestacy. Learn more on our intestacy and no-will overview and our will-drafting overview.
Mistake #3: Forgetting the Non-Citizen Spouse Tax Trap
This is the single most overlooked pitfall for immigrant couples. For most married couples, the unlimited marital deduction lets one spouse leave assets to the other estate-tax-free. But that deduction does not apply when the surviving spouse is not a U.S. citizen.
The standard fix is a QDOT (Qualified Domestic Trust), which preserves the tax deferral for a non-citizen surviving spouse. If your spouse is not yet a citizen, skipping the QDOT can expose the estate to tax that careful planning would have avoided. Keep New York’s own numbers in mind, too:
| New York Estate Tax (2026) | Amount |
|---|---|
| Basic exclusion amount | $7,350,000 |
| Cliff (105% of exclusion) | $7,717,500 |
The cliff is brutal: an estate that exceeds $7,717,500 loses the entire exemption, not just the excess. Larger estates often use trusts under EPTL Article 7 — a revocable living trust to avoid probate (no estate-tax savings), or an irrevocable trust for tax reduction, asset protection, or Medicaid planning (which carries a 5-year look-back). Families caring for a relative with a disability should ask about a special needs trust under EPTL 7-1.12.
Mistake #4: Building a Will But Ignoring the Federal Immigration Side
A will, a power of attorney under GOL §5-1513 (the 2021 durable statutory short form), and a health care proxy under Public Health Law Article 29-C protect you under New York law. But they do nothing for your immigration case — and vice versa. These are different specialties, and trying to make one attorney cover both is a mistake.
Our firm handles the New York estate and will side. For the federal immigration side, families should consult the right specialist. Because immigration is federal, an immigration attorney can represent New York families regardless of where the firm sits. If your path involves a spouse, we honestly cross-refer to a marriage green card attorney at Fitenko Law, which serves Russian- and Ukrainian-speaking families. Use the estate specialist for your will and the immigration specialist for your case — never one for both.
Frequently Asked Questions
Can a non-citizen make a valid will in New York?
Yes. Your immigration status has no bearing on your right to make a New York will, as long as it meets the EPTL §3-2.1 formalities.
Can my relatives overseas inherit my New York property?
Yes. Non-resident and non-citizen heirs can inherit; their status does not bar inheritance, though it can add documentation and tax-withholding steps handled through the Surrogate’s Court.
My spouse is not a U.S. citizen — does that change anything?
Yes. The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard tool to address this.
Do I need a separate lawyer for my immigration case?
Generally, yes. Estate planning is New York state law; immigration is federal law. They are separate practice areas best handled by separate specialists.
What to Do Next
For your New York will, trust, power of attorney, or health care proxy, talk to the estate-planning team at Morgan Legal Group — start with our will-drafting overview or book a time at calendly.com/russel-morgan/30min. For the federal immigration side of your family’s plan, including marriage-based green cards, reach out to the Fitenko Law immigration attorney referenced above. The right specialist for each system is the surest way to avoid the costly mistakes new immigrants make most.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.
Further reading from Morgan Legal Group: .