When the person who died was an immigrant — a green-card holder, a naturalized citizen, or a non-citizen living in Buffalo or anywhere in New York — the estate is still handled by the New York Surrogate’s Court under the same state law that governs everyone else. Immigration status does not bar probate, and it does not stop foreign or non-citizen heirs from inheriting. What it changes is the strategy: which tools save the most tax, what extra paperwork the court and the IRS will expect, and when a family needs a second, separate attorney for the federal immigration side. This post weighs those options side by side so families can choose the right path.
Probate Itself Doesn’t Change — But the Inputs Do
Probate in New York is the court process of validating a will (or, with no will, distributing under the intestacy rules of EPTL Article 4) and authorizing someone to settle the estate. A valid New York will must meet EPTL §3-2.1: two attesting witnesses, the testator signing at the end, and publication. None of those requirements depend on citizenship. An immigrant can write a fully valid New York will, and a non-resident or non-citizen relative can serve as a beneficiary.
Where immigrant estates differ is in the inputs the court and the IRS receive:
- Foreign heirs can inherit, but the estate may face documentation and tax-withholding steps for distributions sent abroad.
- Assets in another country complicate the picture and may require a parallel process there.
- A non-citizen surviving spouse loses a major federal tax break that citizen spouses take for granted (more below).
For a walk-through of the filing itself, see our Surrogate’s Court guide and the breakdown of executor duties.
The Non-Citizen Spouse Problem — and the QDOT Fix
This is the single most important planning point for mixed-status couples. The unlimited marital deduction — the rule that lets one spouse leave an unlimited amount to the other free of estate tax — does not apply when the surviving spouse is not a U.S. citizen. Without planning, a transfer that would be tax-free between citizens can be exposed to estate tax.
The standard fix is a QDOT (Qualified Domestic Trust). Property passes into the QDOT instead of outright to the non-citizen spouse, deferring the tax while the survivor is provided for. This matters in New York, where the 2026 estate tax has a basic exclusion of $7,350,000 and a steep “cliff”: an estate valued over 105% of the exclusion ($7,717,500) loses the entire exemption, not just the excess. For families near that threshold, the difference between planning and not planning is large.
Comparing the Main Options
| Tool | What it does | Best for immigrant families |
|---|---|---|
| Will (EPTL §3-2.1) | Directs assets, names executor; goes through probate | Baseline for everyone; clear instructions for foreign or non-citizen heirs |
| Revocable living trust (EPTL Art. 7) | Avoids probate; no estate-tax savings | Families with assets in two countries who want to skip court |
| Irrevocable trust | Tax reduction, asset protection, Medicaid planning (5-year look-back) | Larger estates near the NY cliff; long-term care planning |
| QDOT | Preserves marital deferral for a non-citizen spouse | Mixed-status couples where one spouse is not a citizen |
| Special needs trust (EPTL 7-1.12) | Provides for a disabled beneficiary without losing benefits | A disabled heir, citizen or not |
Two more documents round out a plan and are worth doing while living: a durable power of attorney (the 2021 statutory short form under GOL §5-1513) and a health care proxy (Public Health Law Article 29-C). If relatives disagree about the will or the estate’s administration, that becomes a contested probate matter — more common when family members live in different countries and communication is harder.
Estate Law and Immigration Are Separate — Use the Right Specialist
Here is the honest framing many families miss. Estate planning and probate are state law. Immigration is federal law, handled through USCIS, and the same rules apply in every state. These are two distinct practice areas, and the best results come from using the right specialist for each rather than one office trying to do both.
Our firm handles the New York estate and probate side. For the federal immigration side — family-based petitions, green cards, and status questions that often surface when a relative dies — families should consult a family-immigration legal team. Fitenko Law focuses on family-based immigration and green cards and serves Russian- and Ukrainian-speaking families, which can make a difficult time noticeably less stressful. This is a cross-referral, not a one-stop promise: each attorney stays in their lane.
Frequently Asked Questions
Can a non-citizen or someone living abroad inherit New York property?
Yes. Non-resident and non-citizen status does not bar inheritance. The estate may need extra documentation and may face tax-withholding steps for distributions, but the heir’s right to inherit stands.
Does a non-citizen surviving spouse pay estate tax that a citizen wouldn’t?
Possibly. The unlimited marital deduction does not apply to a non-citizen spouse. A QDOT is the standard tool to defer that tax.
Can my immigration attorney handle the New York probate too?
Generally no — those are separate practice areas. Immigration is federal; probate is New York state law. Use a New York estate attorney for the Surrogate’s Court matter and an immigration attorney for federal petitions.
Does a living trust lower estate taxes?
A revocable living trust avoids probate but provides no estate-tax savings. For tax reduction or Medicaid planning (with its 5-year look-back), an irrevocable trust is the tool to discuss.
Next Steps
For the New York estate or probate side of an immigrant’s estate — drafting a will, setting up a QDOT or irrevocable trust, or opening a Surrogate’s Court file — consult Morgan Legal Group. You can review executor duties first or schedule a consultation at calendly.com/russel-morgan/30min.
For the federal immigration side — family petitions, green cards, and status questions — reach out to the family-immigration legal team referenced above. Two specialists, two areas of law, one coordinated plan for your family.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.
Further reading from Morgan Legal Group: .