Probate for Immigrant Families in New York

If your family is dealing with a death and a New York estate, here is the honest answer up front: yes, you can settle the estate and inherit New York property even if you, the heirs, or the person who died were not U.S. citizens. Probate in New York is filed in the Surrogate’s Court, and non-resident or non-citizen status does not bar inheritance. It does, however, add documentation and tax-withholding steps, and immigration status can change which estate-planning tools make sense. This post gives you a step-by-step checklist for The Bronx and the rest of New York, and it explains where state estate law ends and federal immigration law begins.

Your First-Steps Checklist

When an immigrant or mixed-status family loses a loved one, the early moves matter. Here is a practical order of operations:

• Locate the original will. New York requires a valid will under EPTL §3-2.1: two attesting witnesses, the testator signing at the end, and publication. If there is no will, the estate passes by intestacy under EPTL Article 4.
• Identify all heirs and beneficiaries — including those abroad. Foreign heirs can inherit, but the court will want proof of identity and relationship. Start gathering passports, birth and marriage certificates (with certified translations) early.
• Inventory the assets. Note which assets are in New York, which are out of state, and which are overseas.
• Confirm marital status and citizenship of the surviving spouse. This single fact can reshape the entire tax picture (see below).
• Open the right proceeding in Surrogate’s Court. Our probate process steps page walks through what the filing looks like.
• Flag any immigration questions separately. Estate matters and immigration matters travel on two different tracks.

If you are new to all of this, the probate overview is the best place to understand the big picture before you file.

Why Immigration Status Matters in a New York Estate

The most important state-law trap for immigrant families is the non-citizen surviving spouse. The unlimited marital deduction — which normally lets one spouse pass everything to the other tax-free — does not apply when the surviving spouse is not a U.S. citizen. The standard fix is a QDOT (Qualified Domestic Trust), which holds the assets for the non-citizen spouse while preserving the deferral.

New York’s own estate tax also looms large. For 2026, the basic exclusion is $7,350,000, but New York uses a “cliff”: an estate valued over 105% of the exclusion ($7,717,500) loses the entire exemption, not just the excess. Families with appreciated Bronx real estate can cross that line faster than they expect.

For foreign heirs, inheriting is allowed, but expect extra documentation and possible tax-withholding steps when proceeds leave the country. Planning ahead with the right trust structure (EPTL Article 7) can simplify this.

State Law vs. Federal Immigration Law: Use the Right Specialist

Here is the split that confuses most families. Estate planning and probate are New York state law. Immigration is federal law, governed by USCIS — which is why an immigration attorney can represent families in any U.S. state, including New York clients. These are two separate practice areas, and the honest takeaway is to use the right specialist for each.

Our firm handles the New York estate and probate side. For the federal immigration side — adjusting status, sponsoring relatives, or pursuing a green card — families should consult a family-based immigration attorney. Fitenko Law focuses on family-based immigration and green cards and serves Russian- and Ukrainian-speaking families, which makes the cross-referral a natural one for many Bronx households. We do not predict approvals, quote government fees, or guess at processing times — that is the immigration attorney’s domain.

When should you loop in immigration counsel? When a surviving spouse’s status is unsettled, when an heir abroad wants to relocate, or when inheritance affects a pending petition. Keep those questions on a separate list from your probate to-dos.

Frequently Asked Questions

Can a non-citizen inherit New York property?
Yes. Non-resident and non-citizen status does not bar inheritance. The estate is still settled in Surrogate’s Court, with added documentation and possible tax-withholding steps.

My spouse is not a U.S. citizen — what changes?
The unlimited marital deduction does not apply. A QDOT (Qualified Domestic Trust) is the standard tool to preserve the tax deferral.

Will my immigration attorney handle the estate, too?
Usually not. Immigration is federal and estate/probate is New York state law — they are different specialties. Use one attorney for each side.

Does a revocable living trust save estate tax?
No. It avoids probate but provides no estate-tax savings. Irrevocable trusts are the tool for tax reduction and asset protection (subject to the 5-year Medicaid look-back).

Next Steps

For the New York estate and probate side, Morgan Legal Group can help you file correctly and plan around the QDOT and the New York tax cliff. Start with our Surrogate’s Court guide or schedule a consultation at calendly.com/russel-morgan/30min.

For the immigration side — green cards and family-based petitions — consult the family-based immigration attorney referenced above. Two tracks, two specialists, one well-protected family.