Trusts for Immigrant Families in New York

Yes, immigrant families in New York can and should use trusts to protect their loved ones and their property, regardless of citizenship or immigration status. Under New York’s EPTL Article 7, both citizens and non-citizens may create revocable and irrevocable trusts, name foreign relatives as beneficiaries, and pass on New York assets without their immigration status blocking the inheritance. What changes for immigrant families is not whether you can plan, but how you plan — especially when a spouse is not a U.S. citizen or when heirs live abroad. This post answers the questions we hear most often, and it draws a clear line between estate planning (New York state law) and immigration (federal law), because they are two separate practice areas that call for two different specialists.

Can a non-citizen or undocumented person create a trust in New York?

Yes. New York trust law does not require U.S. citizenship to create a trust, sign a will, or own property. A valid New York will under EPTL §3-2.1 requires two attesting witnesses, the testator’s signature at the end, and publication — none of which depend on immigration status. A revocable living trust lets a family avoid Surrogate’s Court probate, keeps arrangements private, and makes transferring property to relatives simpler, though it does not save estate tax. An irrevocable trust can reduce taxes, protect assets, and help with Medicaid planning — but remember the 5-year Medicaid look-back, so timing matters.

If you are weighing your options, our overview of the difference between a trust and a will is a good starting point.

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

This is one of the most important questions for mixed-status couples. Normally, a married person can leave an unlimited amount to a surviving spouse with no federal estate tax — 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 estate defer that tax for the benefit of a non-citizen surviving spouse. If your spouse holds a green card or is still in the immigration process, this is exactly the kind of detail a New York estate-planning attorney builds into your plan.

Can my relatives overseas inherit my New York property?

Yes. Foreign heirs and beneficiaries can inherit New York property. Non-resident or non-citizen status does not bar an inheritance. Probate is filed in the New York Surrogate’s Court, and a foreign beneficiary simply faces extra documentation and tax-withholding steps. Planning ahead — for example, through a trust — can reduce delays for relatives who live in another country.

Concern	What New York law allows
Non-citizen creating a trust	Allowed under EPTL Article 7
Foreign heirs inheriting	Allowed; extra documentation/withholding
Avoiding probate	Use a revocable living trust
Non-citizen spouse	Use a QDOT for the marital deduction
Child with disabilities	Special needs trust (EPTL 7-1.12)

For a fuller picture of the tools available, see our trusts overview.

How does immigration status fit into all of this?

Here is the honest part many families never hear clearly: estate planning and immigration are separate areas of law. New York estate and trust law is state law. Immigration is federal law, governed by USCIS, which means an immigration attorney can represent families anywhere in the United States, including New York clients. A great trust does not change your immigration case, and an immigration filing does not write your estate plan.

So the right move is to use the right specialist for each. Our firm handles the New York estate and trust side. For the federal immigration side — particularly investor-visa planning, which often matters to entrepreneurial immigrant families — we honestly refer families to a Florida E-2 investor visa lawyer at Fitenko Law, which serves Russian- and Ukrainian-speaking families. We cannot predict approvals or quote government processing details, and neither should anyone else; that work belongs with a dedicated immigration attorney.

You’ll also want core lifetime documents in place: a durable power of attorney under GOL §5-1513 (the 2021 statutory short form) and a health care proxy under Public Health Law Article 29-C. These protect you while you are alive, no matter your immigration status.

What about New York estate tax?

New York has its own estate tax separate from the federal system. For 2026, the basic exclusion is $7,350,000. New York also has a notorious “cliff”: once an estate exceeds 105% of the exclusion — $7,717,500 — it loses the entire exemption, not just the excess. Families with growing businesses or appreciating property should plan around that cliff carefully.

Frequently Asked Questions

Does my immigration case affect my New York will or trust?
No. Your will and trust are governed by New York state law and remain valid regardless of your immigration status.

Can I name my children abroad as beneficiaries?
Yes. Foreign beneficiaries can inherit New York property; expect extra documentation and possible tax withholding.

Will a trust help with my visa or green card?
No. A trust is an estate-planning tool, not an immigration tool. Immigration is federal and requires an immigration attorney.

My spouse isn’t a citizen — is the marital deduction lost forever?
Not necessarily. A QDOT is the standard way to preserve the benefit of the marital deduction for a non-citizen surviving spouse.

Next steps

For the New York estate and trust side — wills, revocable and irrevocable trusts, QDOTs, and planning around the estate-tax cliff — talk with Morgan Legal Group. You can review the difference between a trust and a will or schedule a consultation at calendly.com/russel-morgan/30min.

For the federal immigration side, including E-2 investor visa questions, consult the Florida E-2 investor visa lawyer referenced above. Using the right specialist for each area is the surest way to protect both your family’s future and its status in the United States.