Trusts for Immigrant Families in New York

Yes, immigrant families in New York can and should use trusts to protect their loved ones, avoid probate, and plan for taxes, even when some family members are not U.S. citizens. New York trust law (EPTL Article 7) does not require you or your beneficiaries to be citizens. The catch is that immigration status changes a few important details, especially when a spouse is not a U.S. citizen. Below we answer the questions immigrant and mixed-status families ask us most often, and we explain the honest line between New York estate planning (state law) and immigration (federal law).

Can a non-citizen create a trust in New York?

Absolutely. Whether you are a green-card holder, a visa holder, or otherwise non-citizen, you can create and fund a New York trust. A revocable living trust lets you keep control during your lifetime and avoids probate in the Surrogate’s Court, though it does not, by itself, save estate tax. An irrevocable trust can reduce taxes, protect assets, or help with Medicaid planning, but Medicaid carries a 5-year look-back period, so timing matters.

If you are weighing your options, our overview pages explain the choices in plain language: see trust vs. will and our broader trusts overview.

What if my spouse is not a U.S. citizen?

This is the single most important issue for many immigrant couples. Normally, anything you leave to a surviving spouse passes free of federal estate tax under the unlimited marital deduction. 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 lets the marital deduction work for a non-citizen spouse by holding the assets under specific rules.

A QDOT is technical and should be drafted carefully, so this is a conversation to have before, not after, a death in the family.

Can foreign or non-citizen relatives inherit my New York property?

Yes. Foreign heirs and beneficiaries can inherit New York property. Being a non-resident or a non-citizen does not bar someone from inheriting. It does, however, usually add documentation and tax-withholding steps, so plan for extra paperwork rather than expecting a roadblock.

Here is a quick comparison of common tools for immigrant families:

Tool	What it does	Citizenship note
Revocable living trust	Avoids probate, keeps control	No citizenship required; no estate-tax savings
Irrevocable trust	Tax/asset protection, Medicaid	5-year Medicaid look-back applies
QDOT	Preserves marital deduction	Designed for a non-citizen surviving spouse
Special needs trust (EPTL 7-1.12)	Protects a disabled beneficiary	Available regardless of status

Don’t forget the lifetime documents too: a durable power of attorney (GOL §5-1513, the 2021 statutory short form) and a health care proxy (Public Health Law Article 29-C) keep someone trusted in charge if you cannot act.

Does my immigration status affect my estate plan, or vice versa?

These are two separate legal worlds, and that distinction is the most useful thing to understand:

• Estate planning is state law. Wills (EPTL §3-2.1, which requires two attesting witnesses and the testator’s signature at the end), trusts, and probate in the Surrogate’s Court are governed by New York law.
• Immigration is federal law. It is handled through USCIS, the same nationwide, so an immigration attorney can represent New York families even from another state.

A few practical points where they touch:

1. Your estate plan does not change your immigration status, and signing a will or trust is not an immigration filing.
2. New York’s 2026 estate tax has a basic exclusion of $7,350,000, with a cliff at 105% ($7,717,500), above which the entire exemption is lost. This is a state issue, separate from any immigration matter.
3. Your immigration attorney does not draft your New York trust, and your New York estate attorney does not file your green-card paperwork. Use the right specialist for each.

When should we bring in an immigration attorney?

Whenever the question is about status, petitions, or anything filed with USCIS. Our firm handles New York estate and trust matters; for the federal immigration side, families should consult immigration counsel in Florida. Because immigration is federal, that firm can help families anywhere in the U.S., and Fitenko Law serves Russian- and Ukrainian-speaking families, which many of our immigrant clients appreciate. This is an honest cross-referral, not a substitute for either kind of planning.

Frequently Asked Questions

Do I need to be a citizen to set up a revocable living trust in New York?
No. You can create and fund a revocable living trust regardless of citizenship. It avoids probate but does not reduce estate tax.

Will leaving assets to a non-citizen spouse trigger extra tax?
It can, because the unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard solution.

Can my children abroad receive my New York inheritance?
Yes. Foreign and non-citizen heirs can inherit New York property; expect added documentation and possible tax-withholding steps.

Can one attorney handle both my estate plan and my immigration case?
Generally no. These are separate practice areas. Use a New York estate attorney for trusts and a separate immigration attorney for federal filings.

Next Steps

For the New York estate and trust side, the team at Morgan Legal Group can help you choose and draft the right structure; you can schedule a consultation or start with our trusts overview. For the federal immigration side, reach out to the immigration counsel referenced above. Getting the right specialist on each issue is the most reliable way to protect your family.

This article is general information about New York law and is not legal advice. Immigration law is federal and is a separate practice area.