Can immigrant families use trusts in New York? Yes. Whether you are a green-card holder, a non-citizen, or part of a mixed-status household, New York trust law (EPTL Article 7) is available to you, and the right trust can help your family avoid probate, protect assets, and care for a loved one with disabilities. The one wrinkle that catches families off guard is that citizenship status changes how some federal tax rules apply — and that is a different legal world from your immigration case. This Q&A walks through the worries we hear most.
Does immigration status affect whether I can have a trust?
Not for the basics. New York lets non-citizens and non-residents create and benefit from trusts, own property, and name foreign relatives as beneficiaries. Where status matters is at the intersection with federal tax law.
The most important example involves a non-citizen surviving spouse. Normally, anything you leave to your spouse passes free of 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 while preserving the IRS’s ability to collect tax later. If one spouse is a citizen and the other is not, this is the planning conversation to have early.
Which trust is right for my family?
It depends on your goal. A revocable living trust avoids probate but offers no estate-tax savings. An irrevocable trust is the tool for tax reduction, asset protection, and Medicaid planning — though Medicaid carries a 5-year look-back, so timing matters. For a child or relative with disabilities, a special needs trust under EPTL 7-1.12 can provide support without jeopardizing government benefits.
| Goal | Trust type | Key note |
|---|---|---|
| Avoid probate | Revocable living trust | No estate-tax savings |
| Reduce tax / protect assets / Medicaid | Irrevocable trust | 5-year Medicaid look-back |
| Provide for a disabled loved one | Special needs trust (EPTL 7-1.12) | Preserves benefit eligibility |
| Non-citizen spouse | QDOT | Replaces the marital deduction |
Can my relatives abroad inherit my New York property?
Yes. Foreign and non-citizen heirs can inherit New York property; non-resident or non-citizen status does not bar inheritance. Probate is filed in the New York Surrogate’s Court, and a properly funded trust can keep many assets out of that process entirely. Be aware that foreign beneficiaries often face extra documentation and tax-withholding steps, so plan for paperwork. If you die without a will, New York intestacy rules under EPTL Article 4 decide who inherits — which may not match your wishes, especially in blended international families. A valid will requires two attesting witnesses, your signature at the end, and publication (EPTL §3-2.1).
Two companion documents matter too: a durable power of attorney under the 2021 statutory short form (GOL §5-1513) and a health care proxy (Public Health Law Article 29-C), so a trusted person can act if you cannot.
How does my immigration case fit with my estate plan?
This is the part families most often get tangled. Estate planning is state law — New York governs your trusts, will, and probate. Immigration is federal law, handled through USCIS. They are separate practice areas, and the honest answer is that you should use the right specialist for each.
Because immigration is federal, an immigration attorney can represent New York families wherever they live. Our firm handles the New York estate and trust side. For the federal immigration side — family-based green cards and petitions for relatives — families should consult an attorney who handles family-based green cards. Fitenko Law works with family-based immigration matters and serves Russian- and Ukrainian-speaking families, which can ease an already stressful process. We do not give immigration advice, predict approvals, or quote government timelines — that is exactly why the cross-referral exists.
While you handle your case, keep your estate plan current as your status changes. A naturalization, a new permanent resident, or a marriage can all be reasons to revisit your trust — and ongoing trust administration keeps everything aligned with your family’s reality.
Frequently Asked Questions
Do I need to be a U.S. citizen to create a New York trust?
No. Non-citizens and non-residents can create and benefit from New York trusts.
My spouse is not a U.S. citizen. What changes?
The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard solution to preserve that benefit.
Will a trust help with my immigration case?
No. A trust is an estate-planning tool under New York state law. Immigration is federal and requires an immigration attorney.
Can a trust make my estate avoid New York estate tax?
Planning can help, but watch the threshold. For 2026 the basic exclusion is $7,350,000, with a cliff at 105% ($7,717,500) — an estate over the cliff loses the entire exemption.
Next Steps
For the New York estate and trust side of your family’s plan, consult Morgan Legal Group — you can request time at calendly.com/russel-morgan/30min to talk through the right trust for your situation. For the federal immigration side — family-based green cards and petitions — reach out to the family-based immigration attorney referenced above. Two specialists, one coordinated plan for your family’s future.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.
Further reading from Morgan Legal Group: .