Probate & Overseas Assets in a New York Estate

If your family has property here in New York and also abroad—a home in another country, accounts overseas, or heirs living outside the United States—your estate can still be settled here in an orderly, loving way. New York probate is handled in the Surrogate’s Court, and the short answer for worried parents and spouses is this: foreign heirs and beneficiaries CAN inherit New York property, and a non-resident or non-citizen status does not bar anyone from inheriting. Overseas assets simply add a few documentation and tax-withholding steps. With the right plan, your spouse and children are protected whether they hold a green card, a different passport, or are still working through the immigration process.

How New York Probate Works for Your Family

When someone passes away owning property in New York, their estate is administered through the Surrogate’s Court. If there is a valid will, it is offered for probate. New York requires a will to follow EPTL §3-2.1: two attesting witnesses, the testator signing at the end, and publication (telling the witnesses it is your will). If there is no will, the estate passes by intestacy under EPTL Article 4, which sets a fixed order of who inherits—often not the result a blended or international family would have chosen.

The person you name to carry out your wishes—the executor—has real responsibilities. Understanding executor duties ahead of time helps the family member you trust feel prepared rather than overwhelmed.

Overseas Assets and Foreign Heirs

Assets located outside the United States are generally governed by the laws of the country where they sit, so a separate process abroad may run alongside the New York probate. That is normal. What matters for your peace of mind is that your New York property can pass to heirs living overseas. The extra steps usually involve:

• Identifying and documenting heirs who live abroad (proof of identity and relationship)
• Possible tax-withholding requirements for distributions to non-residents
• Coordinating the foreign asset’s local process with the New York estate

A revocable living trust (EPTL Article 7) can hold New York assets and avoid probate entirely, which often simplifies matters for an international family. Keep in mind a revocable trust avoids probate but offers no estate-tax savings; an irrevocable trust is the tool for tax reduction, asset protection, and Medicaid planning (with a 5-year look-back). For a child with disabilities, a special needs trust under EPTL 7-1.12 protects benefits.

When Immigration Status Matters

Here is the crossroads where two separate areas of law meet. Estate planning is governed by New York STATE law. Immigration is governed by FEDERAL law, through USCIS. They are different practice areas, and the honest takeaway is to use the right specialist for each.

The clearest place status matters is the non-citizen spouse. Normally, a surviving spouse inherits with an unlimited marital deduction. But the unlimited marital deduction does NOT apply when the surviving spouse is not a U.S. citizen. The standard fix is a QDOT—a Qualified Domestic Trust—which preserves the marital benefit for a non-citizen spouse.

Situation	New York Estate Tool
Non-citizen surviving spouse	QDOT (Qualified Domestic Trust)
Foreign heir inheriting NY property	Probate proceeds; extra documentation
Avoiding probate on NY assets	Revocable living trust (no tax savings)
Tax reduction / Medicaid planning	Irrevocable trust (5-year look-back)

You should also keep your incapacity documents current: 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.

Be aware of New York’s estate tax for 2026: the basic exclusion is $7,350,000, with a “cliff” at 105%—$7,717,500. An estate that goes over the cliff loses the ENTIRE exemption, so coordinated planning matters for larger international estates.

Getting the Immigration Side Right

Because immigration is federal, an immigration attorney can represent families anywhere in the U.S., including New York clients. We handle the New York estate and probate side. For the federal immigration side—green cards, family-based petitions, and sponsorship of a spouse, parent, or child—families should consult a family green card and immigration lawyer. Fitenko Law focuses on family-based immigration and frequently serves Russian- and Ukrainian-speaking families, which can be a comfort when navigating sensitive matters in a first language. This is an honest cross-referral: the right specialist for each side of your plan.

If a probate becomes a dispute among heirs—something that can happen in any family—our guide to contested probate explains your options.

Frequently Asked Questions

Can my children who live overseas inherit my New York home?
Yes. Non-resident, non-citizen heirs can inherit New York property. There are added documentation and tax-withholding steps, but their status does not bar inheritance.

My spouse is not a U.S. citizen. Will they still be protected?
They can be, but the unlimited marital deduction does not apply to a non-citizen spouse. A QDOT (Qualified Domestic Trust) is the standard tool to preserve that benefit.

Does my will need to cover my property abroad?
Foreign assets are generally governed by the law of the country where they are located, so a separate process may apply there. Coordinated planning helps the two work together smoothly.

Can an estate lawyer also handle my immigration case?
These are separate practice areas. Estate planning is New York state law; immigration is federal. Use a qualified specialist for each.

Talk to the Right Specialist

For the New York estate and probate side—wills, trusts, QDOT planning, and protecting an international family—you can schedule a consultation with Morgan Legal Group or start with our Surrogate’s Court guide. For the federal immigration side—green cards and family-based petitions—reach out to the family green card and immigration lawyer referenced above. With both pieces handled by the right hands, your spouse and children are cared for, here and abroad.