Yes, you can absolutely set up a New York trust that benefits a non-citizen, and a non-citizen can inherit New York property. Under New York law, immigration status does not bar someone from being a trust beneficiary or an heir. The catches are practical, not prohibitive: a non-citizen surviving spouse does not get the unlimited marital deduction (a special trust called a QDOT solves this), and foreign beneficiaries may face extra paperwork and tax-withholding steps. If you are new to U.S. estate planning, this guide walks you through the essentials in plain English.
How New York Trusts Work for Any Beneficiary
A trust is simply a legal arrangement where you place assets under the management of a trustee for the benefit of the people you choose. In New York, trusts are governed by EPTL Article 7. There are two broad types:
- Revocable living trust — You keep control and can change it anytime. Its main benefit is avoiding probate (the court process in the New York Surrogate’s Court). It does not save estate tax.
- Irrevocable trust — Harder to change, but it can reduce estate tax, protect assets, and support Medicaid planning. Note the 5-year look-back for Medicaid eligibility.
A non-citizen can be the beneficiary of either type. If you are weighing whether a trust or a simple will fits your family, our overview of the difference between a trust and a will is a good starting point. Wills in New York must follow EPTL §3-2.1: two attesting witnesses, with the testator signing at the end. If there is no will, EPTL Article 4 (intestacy) decides who inherits.
The Non-Citizen Spouse Problem (and the QDOT Fix)
Here is the single most important issue for mixed-status couples. When a U.S. citizen dies and leaves assets to a U.S. citizen spouse, the unlimited marital deduction lets everything pass estate-tax-free. But that deduction does not apply when the surviving spouse is a non-citizen. Without planning, those assets could be exposed to estate tax at the first death.
The standard solution is a QDOT (Qualified Domestic Trust). Assets pass into the QDOT for the benefit of the non-citizen spouse, which defers the estate tax until distributions or the spouse’s death. This is a federal estate-tax tool that works alongside your New York plan. Speaking of New York, keep the state numbers in mind:
| New York Estate Tax (2026) | Amount |
|---|---|
| Basic exclusion | $7,350,000 |
| “Cliff” at 105% | $7,717,500 |
The cliff matters: an estate that goes over $7,717,500 loses the entire exemption, not just the excess. For larger estates, that makes precise trust planning especially valuable.
When Immigration Status Changes the Picture
Estate planning is state law, but immigration is federal law, governed by USCIS. These are two separate practice areas, and the honest answer is that you need the right specialist for each.
Why does immigration status matter to your estate plan? A few reasons:
- A non-citizen spouse triggers the QDOT issue above.
- Foreign or non-resident heirs can inherit New York property, but the estate may face extra documentation and tax-withholding steps during trust administration.
- A family planning to immigrate, invest, or change status in the U.S. has goals that an estate plan alone cannot address.
Because immigration is federal, an immigration attorney can represent New York families even from another state. We handle the New York estate and trust side; for the immigration side, we are glad to make an honest referral. If your family is pursuing a U.S. investor visa, we often point clients to a Florida E-2 investor visa lawyer at Fitenko Law, a firm that also serves Russian- and Ukrainian-speaking families. We do not give immigration advice, predict approvals, or quote government fees — that is squarely their lane, and your estate plan is ours.
Protecting a Non-Citizen Family Member with Special Needs
If a beneficiary — citizen or not — has a disability, leaving assets outright can disqualify them from needs-based benefits. New York’s special needs trust under EPTL 7-1.12 lets you provide for them without jeopardizing eligibility. Learn more on our special needs trust page.
Rounding out a complete plan, most families also pair their trust with a durable power of attorney (GOL §5-1513, the 2021 statutory short form) and a health care proxy (Public Health Law Article 29-C) so someone you trust can act if you cannot.
Frequently Asked Questions
Can a non-citizen inherit property in New York?
Yes. Non-resident and non-citizen status does not bar inheritance. The estate simply has extra documentation and possible tax-withholding steps.
My spouse is not a U.S. citizen. Do we really need a QDOT?
If your estate could be large enough to owe estate tax, a QDOT is the standard tool because the unlimited marital deduction does not apply to a non-citizen spouse. An attorney can confirm whether it fits your situation.
Does a living trust help my immigration case?
No. A revocable living trust avoids probate and is purely a state-law estate tool. Immigration is federal and handled separately by an immigration attorney.
Can the same lawyer handle both my trust and my visa?
Usually not, because they are different practice areas. Use a New York estate attorney for the trust and an immigration attorney for the visa.
Next Steps
For the New York estate and trust side — including QDOTs, special needs planning, and probate questions — the team at Morgan Legal Group can help. You can schedule a consultation to map out a plan that fits your family.
For the federal immigration side, including E-2 investor visas, consult the Florida E-2 investor visa lawyer referenced above. Getting the right specialist for each part of your plan is the surest way to protect both your assets and your family’s future in the United States.
Have a question about your estate?
Talk it through with Russel Morgan — free 30-minute consult.
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