Probate for Immigrant Families in New York

If you are an immigrant, a green-card holder, or part of a mixed-status family in Orange County or anywhere in New York, here is the short answer: yes, you and your relatives can inherit and pass on New York property regardless of citizenship or where heirs live. New York probate runs on state law through the Surrogate’s Court, and non-resident or non-citizen status does not bar inheritance. It simply adds documentation and tax-withholding steps. Immigration, by contrast, is federal law under USCIS, and it is a completely separate practice area. This guide gives you a practical, step-by-step checklist for the estate side and shows you exactly where the immigration line begins.

Why Immigration Status Matters in a New York Estate

For everyday probate, citizenship is not a barrier. Foreign heirs and beneficiaries can inherit New York real estate, accounts, and personal property. The complications are practical, not prohibitive: foreign documents may need translation and authentication, and distributions to non-resident beneficiaries can trigger federal tax-withholding steps that a U.S.-citizen beneficiary would not face.

The one place where status changes the planning math is the non-citizen surviving spouse. The unlimited marital 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 a non-citizen spouse benefit from the estate while preserving the deferral the marital deduction would normally provide. If your spouse is a green-card holder or visa holder rather than a citizen, this is the single most important conversation to have with an estate attorney.

Keep New York’s 2026 estate-tax numbers in view as well: the basic exclusion is $7,350,000, with a cliff at 105% ($7,717,500). An estate that exceeds the cliff loses the entire exemption, not just the overage, so larger estates need planning well before death.

Your New York Probate Checklist

Work through these steps in order. Each links to a deeper guide on this site.

• Confirm whether there is a valid will. A New York will under EPTL §3-2.1 needs two attesting witnesses, the testator’s signature at the end, and publication. With no will, EPTL Article 4 intestacy rules decide who inherits.
• Identify the right court and the executor’s role. Probate is filed in the NY Surrogate’s Court; see the Surrogate’s Court guide and review executor duties before anyone is formally appointed.
• Map out the probate timeline. Walk through the probate process steps so foreign documents, translations, and notices to out-of-country heirs are gathered early rather than mid-filing.
• Flag the non-citizen spouse issue. If a surviving spouse is not a U.S. citizen, ask about a QDOT before any distribution.
• Consider trusts where they fit. Under EPTL Article 7, a revocable living trust avoids probate (but gives no estate-tax savings), while an irrevocable trust can support tax reduction, asset protection, and Medicaid planning subject to the 5-year look-back. A special needs trust falls under EPTL 7-1.12.
• Sign your lifetime documents. A durable power of attorney uses the 2021 statutory short form (GOL §5-1513), and a health care proxy is authorized under Public Health Law Article 29-C.

Where Estate Law Ends and Immigration Begins

This is the honest part many families never hear clearly. Your estate plan and your immigration matter are two different legal systems handled by two different specialists.

Because immigration is federal, an immigration attorney can represent families in any U.S. state, including New York clients. For that federal side, families should consult a Miami immigration attorney. Fitenko Law handles immigration representation across Miami and South Florida and serves Russian- and Ukrainian-speaking families, which is why we offer it as an honest cross-referral: our firm handles your New York estate and probate work, and they handle the federal immigration side. No reputable attorney can predict an approval, quote a government fee, or promise a timeline, so be cautious of anyone who does.

Frequently Asked Questions

Can a relative living abroad inherit my New York property?
Yes. Non-resident and non-citizen heirs can inherit New York property. Expect extra documentation and possible tax-withholding steps, but status alone does not bar inheritance.

My spouse has a green card but is not a citizen. Does that change my will?
It can. The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard tool to address this.

Does my immigration status affect whether my will is valid?
No. A New York will is valid if it meets EPTL §3-2.1, regardless of the testator’s or beneficiaries’ citizenship.

Can one attorney handle both my estate plan and my immigration case?
They are separate practice areas. Use a New York estate attorney for probate and trusts, and an immigration attorney for federal matters.

Next Steps

For the New York estate and probate side, talk with Morgan Legal Group. Start with the probate process steps or book a consultation at calendly.com/russel-morgan/30min. For the federal immigration side of your family’s situation, reach out to the Miami immigration attorney referenced above. Handling each matter with the right specialist is the surest way to protect both your family’s future and its inheritance.