Yes — non-citizens and green card holders can absolutely make a valid will in New York, and they should. Your immigration status does not change your right to create a will under New York law, and it does not stop your loved ones from inheriting your New York property. What status can change is the tax treatment of what you leave to a spouse, and the paperwork your family may face later. Below, we answer the questions immigrant and mixed-status families ask us most, separating the New York estate-law side (state law) from the immigration side (federal law), so you know exactly which specialist to call for each.
Can a non-citizen or green card holder make a valid will in New York?
Yes. New York’s will-execution rules treat everyone the same. Under EPTL §3-2.1, a valid New York will requires that the testator sign at the end of the document, declare to the witnesses that it is their will (this is called publication), and have two attesting witnesses. Citizenship and immigration status are simply not factors. A green card holder, a visa holder, or an undocumented resident can all sign a will in New York if these formalities are met.
If you die without a will, New York’s intestacy statute (EPTL Article 4) decides who inherits — again, regardless of citizenship. The catch is that intestacy follows a fixed family formula that may not match your wishes, especially in blended or cross-border families. A will lets you choose. To see exactly how a proper signing should go, review our guides on New York will requirements and the will execution process.
Why does my immigration status matter for estate planning?
For the will itself, it doesn’t. Where status matters is estate tax — specifically when you leave assets to a spouse who is not a U.S. citizen.
Normally, a U.S.-citizen spouse can inherit an unlimited amount estate-tax-free under the unlimited marital deduction. That deduction does NOT apply to a non-citizen surviving spouse. The standard fix is a QDOT (Qualified Domestic Trust), which lets assets pass to a non-citizen spouse while deferring the federal estate tax. If your spouse is a green card holder or visa holder rather than a citizen, this is the single most important planning point to raise with your attorney.
New York also imposes its own estate tax. For 2026, the basic exclusion is $7,350,000, but watch the “cliff”: at 105% of the exclusion — $7,717,500 — an estate loses the entire exemption, not just the excess. Larger estates often use trusts under EPTL Article 7 to manage this. A revocable living trust avoids probate (but offers no estate-tax savings); an irrevocable trust can provide tax reduction, asset protection, or Medicaid planning, subject to a 5-year look-back.
| Situation | New York rule |
|---|---|
| Making a will | Allowed for any status (EPTL §3-2.1) |
| No will | Intestacy applies (EPTL Article 4) |
| Citizen spouse inherits | Unlimited marital deduction |
| Non-citizen spouse inherits | No marital deduction — use a QDOT |
| NY estate tax 2026 | $7,350,000 exclusion; cliff at $7,717,500 |
Can my family overseas inherit my New York property?
Yes. Foreign and non-resident heirs and beneficiaries can inherit New York property. Being a non-citizen or living abroad does not bar inheritance. Probate is filed in the New York Surrogate’s Court, and foreign beneficiaries can receive their share — there are simply extra documentation and tax-withholding steps to work through. Keeping your will current as your family moves between countries matters here; if your circumstances change, our page on codicils and amendments explains how to update a will properly.
You should also have 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. For a child or relative with a disability, a special needs trust under EPTL 7-1.12 can protect benefits.
When should I involve an immigration attorney?
Here is the honest part. Estate planning is New York state law, and immigration is federal law (USCIS) — they are separate practice areas. Our firm handles your New York will, trust, and estate matters. We do not handle your green card, naturalization, or visa questions, and you should be cautious of any estate firm that claims to do both as one service.
Because immigration is federal, an immigration attorney can represent families in any state, including New York clients. For the federal immigration side, we’re glad to refer Russian- and Ukrainian-speaking families to a Russian-speaking immigration attorney in Florida (Fitenko Law). Use the right specialist for each lane: us for your New York estate plan, an immigration attorney for status questions.
Frequently Asked Questions
Do I need to be a U.S. citizen to sign a New York will?
No. Any New York resident can sign a valid will if the EPTL §3-2.1 formalities — signature at the end, publication, and two witnesses — are met.
My spouse has a green card but isn’t a citizen. What’s the main concern?
The unlimited marital deduction does not apply to a non-citizen spouse. A QDOT is the standard tool to pass assets to them while deferring federal estate tax.
Can my relatives abroad inherit through the Surrogate’s Court?
Yes. Non-resident, non-citizen heirs can inherit New York property. Expect additional documentation and tax-withholding steps during probate.
Can my estate attorney handle my immigration case too?
No — these are different fields. Estate planning is state law; immigration is federal. Consult an immigration attorney for status matters.
Next Steps
For your New York estate and will planning — wills, trusts, QDOT planning for a non-citizen spouse, and Surrogate’s Court questions — speak with Morgan Legal Group. You can schedule a consultation or start with our New York will requirements overview.
For the federal immigration side, Russian- and Ukrainian-speaking families can reach out to Fitenko Law using the link above. Getting both lanes handled by the right specialist is the surest way to protect your family on both sides of the border.
Further reading from Morgan Legal Group: the last will and testament in New York.