Estate Planning With a Pending Green Card in New York

Yes — you can and should do your estate planning in New York even while your green card or citizenship is still pending. Your immigration status does not stop you from signing a valid New York will, creating a trust, or naming someone you trust to make decisions if you cannot. Estate planning is governed by New York state law, and it protects the people you love right now, no matter where you are in your immigration journey. For parents and spouses in mixed-status families, that protection is often the most reassuring thing you can put in place while you wait.

This post explains what you can do today, why your status matters for some pieces of the plan, and when to bring in a separate immigration attorney.

You Can Plan Now, Whatever Your Status

A will in New York is valid when it is signed at the end by you and witnessed by two attesting witnesses, with the document published as your will (EPTL §3-2.1). Nothing in that rule requires citizenship or a green card. If you pass away without a will, New York’s intestacy statute (EPTL Article 4) decides who inherits — and that may not match your wishes, especially in a blended or multi-country family.

A few reassuring facts for immigrant and non-citizen families:

• Foreign and non-citizen heirs can inherit New York property. Being a non-resident or non-citizen does not bar inheritance; it simply adds documentation and tax-withholding steps when the estate is settled.
• Probate happens in the New York Surrogate’s Court regardless of where your beneficiaries live.
• A will lets you name a guardian for minor children — a critical step for parents who are still waiting on their own status.

Trusts, Spouses, and the Non-Citizen Marital Rule

Trusts (EPTL Article 7) are a flexible tool for families. A revocable living trust lets your estate avoid probate, though it offers no estate-tax savings. An irrevocable trust can reduce taxes, protect assets, or help with Medicaid planning — but Medicaid carries a 5-year look-back, so timing matters. If you have a child with disabilities, a special needs trust (EPTL 7-1.12) can provide for them without jeopardizing benefits.

One rule deserves special attention for mixed-status couples. The unlimited marital deduction does not apply when the surviving spouse is not a U.S. citizen. Normally, a spouse can inherit any amount estate-tax-free; that automatic shelter is unavailable for a non-citizen spouse. The standard fix is a Qualified Domestic Trust (QDOT), which preserves the deferral. If one spouse is still waiting on citizenship, this is exactly the kind of detail a New York estate attorney plans around in advance.

For context, the New York estate tax in 2026 has a basic exclusion of $7,350,000, with a “cliff” at 105% — $7,717,500. An estate that goes over the cliff loses the entire exemption, so larger estates need careful structuring.

Decision-Makers for the In-Between Time

While your status is pending, life continues — travel, medical appointments, paperwork. Two documents make sure someone you trust can act for you:

Document	What it covers	New York authority
Power of attorney	Financial and legal matters	GOL §5-1513 (durable; 2021 statutory short form)
Health care proxy	Medical decisions if you cannot speak for yourself	Public Health Law Article 29-C

A durable power of attorney is especially valuable if you may travel or face delays — your spouse or another trusted person can manage finances without interruption.

Where Estate Law Ends and Immigration Begins

Here is the honest part. Estate planning is state law. Immigration is federal law, handled through USCIS, and it is a completely separate practice area. Our firm handles New York estate and estate-planning matters; we do not handle green-card petitions or citizenship cases, and your will or trust will not change the outcome of your immigration case.

For the federal immigration side, families should consult an attorney who handles family-based green cards. Fitenko Law focuses on family-based immigration and green cards and serves Russian- and Ukrainian-speaking families — a natural fit if your household is navigating both estate planning and a pending case. The right approach is simple: use the correct specialist for each side of your plan.

Frequently Asked Questions

Can I sign a New York will before my green card is approved?
Yes. A valid will requires your signature at the end and two attesting witnesses (EPTL §3-2.1). Citizenship or permanent residency is not required.

My spouse is not yet a citizen — what happens to the marital deduction?
The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard tool to preserve the tax deferral, and it can be set up now.

Can my relatives abroad inherit my New York home?
Yes. Foreign and non-citizen heirs can inherit New York property. Their status does not bar inheritance, though it adds documentation and tax-withholding steps in Surrogate’s Court.

Will an estate plan affect my immigration case?
No. They are separate areas of law. Your estate plan protects your family under New York law; your immigration case is decided under federal law by USCIS.

Two Steps to Protect Your Family

For the New York estate side — your will, trusts, power of attorney, and the QDOT planning a non-citizen spouse may need — speak with Morgan Legal Group. You can schedule a consultation at calendly.com/russel-morgan/30min or start by reviewing our trusts page.

For the federal immigration side — green cards and family-based petitions — reach out to the immigration attorney referenced above. Two specialists, one well-protected family.