Using a Trust for Foreign Assets in a New York Estate

Yes, you can use a New York trust to hold and pass on foreign assets, and for many immigrant and mixed-status families it is the most practical option. A revocable living trust can keep both U.S. and overseas property out of New York’s Surrogate’s Court probate, while an irrevocable trust (governed by EPTL Article 7) can layer in tax reduction and asset protection. The harder part is not the trust itself but the immigration overlay: your citizenship status, and your spouse’s status, can change the tax math entirely. This post compares the main planning tools side by side so you can see which fits a cross-border estate.

The Core Choice: Will, Revocable Trust, or Irrevocable Trust

Every New York plan starts with the same fork in the road. A will (EPTL §3-2.1, signed at the end before two attesting witnesses) is simple but guarantees probate. A revocable living trust avoids probate but offers no estate-tax savings. An irrevocable trust gives up your control in exchange for tax reduction, asset protection, or Medicaid planning (subject to a 5-year look-back). For a fuller breakdown, see our trust vs. will comparison and our trusts overview.

Tool	Avoids NY probate	Estate-tax savings	Best for foreign assets when…
Will (EPTL §3-2.1)	No	No	The estate is small and simple
Revocable living trust	Yes	No	You want privacy and to skip Surrogate’s Court
Irrevocable trust (EPTL Art. 7)	Yes	Yes	You face NY estate tax or want asset protection

The revocable trust is usually the entry point for families holding an apartment abroad or accounts in another country, because it consolidates everything under one document and one trustee, sidestepping a separate New York probate.

Why Immigration Status Changes the Tax Math

This is where cross-border estates differ from typical New York ones. The federal unlimited marital deduction — which normally lets a spouse inherit estate-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 preserves the deferral while ensuring the IRS can still collect tax later. If your spouse is a green-card holder or visa holder rather than a citizen, a plain marital trust may not protect you, and a QDOT belongs in the conversation.

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”: once an estate exceeds 105% of that figure ($7,717,500), the entire exemption disappears. Foreign assets often push estates closer to that edge than families expect, which is exactly when an irrevocable trust earns its keep.

Foreign Heirs and the Federal-vs-State Split

Non-resident and non-citizen heirs can inherit New York property — immigration status does not bar inheritance. It simply adds documentation and tax-withholding steps when assets move to beneficiaries abroad. That is a Surrogate’s Court and tax matter, handled under New York law.

Here is the distinction that trips families up: estate planning is state law, while immigration is federal law (administered by USCIS). They are separate practice areas. A trust does not adjust anyone’s immigration status, and an immigration filing does not move your assets. Because immigration is federal, an immigration attorney can represent New York families from anywhere in the country.

Our firm handles the New York estate and trust side. For the federal immigration side — sponsoring a relative, adjusting a spouse’s status, 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 them a natural cross-referral when your estate plan and your immigration goals run in parallel.

When the two intersect — say, a non-citizen spouse needing both a QDOT and a path to citizenship — the honest answer is to use the right specialist for each side rather than asking one attorney to cover both.

When to Use Each Specialist

• Estate/trust attorney (state law): drafting the trust, QDOT structuring, avoiding the NY estate-tax cliff, Surrogate’s Court issues, planning for foreign heirs.
• Immigration attorney (federal law): family-based petitions, adjustment of status, green cards, citizenship questions.
• Both, coordinated: mixed-status couples where a non-citizen spouse’s tax treatment depends on whether and when citizenship is obtained.

Frequently Asked Questions

Can a New York trust hold property I own in another country?
Yes. A trust can be drafted to hold foreign assets, though local law in that country may also apply, so coordination is wise.

My spouse is not a U.S. citizen — does the marital deduction still work?
No, not automatically. The unlimited marital deduction does not apply to a non-citizen surviving spouse. A QDOT is the standard tool to preserve the deferral.

Can my relatives overseas inherit my New York assets?
Yes. Non-resident, non-citizen heirs can inherit; their status does not bar inheritance but adds documentation and tax-withholding steps.

Will a trust help with my immigration case?
No. Trusts are state-law estate tools and have no effect on immigration status, which is decided under federal law.

Next Steps

For the New York estate and trust side — choosing between a revocable and irrevocable structure, building a QDOT, or steering clear of the estate-tax cliff — speak with Morgan Legal Group. You can review our trusts overview or schedule a consultation at calendly.com/russel-morgan/30min.

For the federal immigration side — family-based petitions and green cards — consult the family-based immigration attorney referenced above. Using the right specialist for each half of your plan is the surest way to protect both your assets and your family’s future.