Trust Planning for Green Card Holders in New York

If you are a green card holder living in New York, the short answer is this: you can absolutely create trusts, write a valid will, and pass your New York property to your family — but immigration status changes the rules in ways that quietly destroy plans built for U.S. citizens. The most expensive errors we see are not exotic. They come from copying a citizen’s plan without accounting for a non-citizen spouse, a foreign heir, or a future Medicaid need. This guide walks through the mistakes to avoid so your trust actually works when it matters.

Why Immigration Status Changes Your New York Plan

Two separate bodies of law govern your situation, and confusing them is the first big mistake. Estate planning is New York State law. Wills follow EPTL §3-2.1 (two attesting witnesses, the testator signs at the end, with publication), and trusts follow EPTL Article 7. If you die without a will, New York’s intestacy rules under EPTL Article 4 decide who inherits — not you.

Immigration is federal law, handled by USCIS, and it does not change based on which state you live in. That separation matters because no single attorney handles both well. A New York trust attorney should not be predicting your naturalization timeline, and an immigration attorney should not be drafting your irrevocable trust. The honest takeaway: use the right specialist for each side.

Good news on inheritance: foreign heirs and beneficiaries can inherit New York property. Being a non-resident or non-citizen does not bar inheritance. It does, however, add documentation and tax-withholding steps — which is exactly why these estates need real planning, not a template.

Mistake #1: Assuming the Marital Deduction Protects a Non-Citizen Spouse

This is the single costliest pitfall for mixed-status couples. The unlimited marital deduction — the rule that lets one spouse leave everything to the other estate-tax-free — does not apply when the surviving spouse is not a U.S. citizen. Families assume they are protected, then discover a large tax exposure at the worst possible moment.

The standard fix is a QDOT (Qualified Domestic Trust). Property passes into the QDOT for the non-citizen spouse, preserving the deferral the marital deduction would normally provide. If one spouse is a green card holder and the other is a citizen — or both are non-citizens — this belongs at the top of your checklist.

Keep New York’s own estate tax in view, too. For 2026, the basic exclusion is $7,350,000, but New York has a “cliff” at 105% ($7,717,500). Cross that cliff and the estate loses the entire exemption, not just the excess. For families with New York real estate and a non-citizen spouse, that combination demands careful structuring.

Mistake #2: Picking the Wrong Trust for the Wrong Goal

Different trusts solve different problems. Choosing one because a friend used it — instead of matching it to your goal — wastes money and may leave you exposed.

Goal	Tool	Key point
Avoid probate, stay flexible	Revocable living trust	Avoids Surrogate’s Court probate, but offers no estate-tax savings
Reduce tax / protect assets / Medicaid	Irrevocable trust	Medicaid carries a 5-year look-back
Provide for a disabled loved one	Special needs trust (EPTL 7-1.12)	Preserves benefit eligibility

A few reminders that catch people:

• A revocable living trust avoids probate in the New York Surrogate’s Court but saves zero estate tax.
• Medicaid planning through an irrevocable trust must clear the 5-year look-back — start early, not in a crisis.
• Don’t forget the lifetime documents: 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.

Start with our trusts overview if you are not sure which structure fits.

Mistake #3: Handling the Immigration Side With the Wrong Help

When immigration questions surface — a spouse’s status, an investor visa, a relative’s path — your estate attorney is the wrong person to ask. Because immigration is federal, an immigration attorney can represent families in any U.S. state, including New York clients.

Our firm focuses on New York estate and trust matters. For the federal immigration side, we make an honest cross-referral: families exploring investor pathways should consult an E-2 investor visa attorney. Fitenko Law handles that work and serves Russian- and Ukrainian-speaking families, which matters when precise communication is everything. We do not predict approvals, quote government fees, or estimate processing times — and you should be cautious of anyone who does.

Frequently Asked Questions

Can a green card holder create a valid New York will and trust?
Yes. Green card holders can execute a will under EPTL §3-2.1 and create trusts under EPTL Article 7 just like citizens. Status affects tax treatment, not your right to plan.

Can my relatives abroad inherit my New York property?
Yes. Non-resident and non-citizen heirs can inherit New York property. Their status adds documentation and tax-withholding steps but does not bar inheritance.

Do I need a QDOT?
If your surviving spouse is not a U.S. citizen, a QDOT is the standard tool to preserve marital tax deferral, since the unlimited marital deduction does not apply to a non-citizen spouse.

Should one attorney handle both my estate plan and immigration case?
No. Estate planning is state law and immigration is federal law. Use a New York trust attorney for one and an immigration attorney for the other.

Next Steps

For the New York estate and trust side — your will, your QDOT, Medicaid planning, and choosing the right trust — consult Morgan Legal Group. You can review our trusts overview or schedule a conversation at calendly.com/russel-morgan/30min.

For the federal immigration side, including E-2 investor visa questions, reach out to the immigration counsel referenced above. Two specialists, two bodies of law — that is how green card families in New York build plans that hold.