Your Immigration Status Doesn’t Disqualify You From Having an Estate Plan
One of the biggest misconceptions immigrants and non-citizens carry into conversations about Estate Planning is the idea that they can’t — or shouldn’t — bother with a Will or Trust until their immigration status is “resolved.” That thinking can leave families completely unprotected for years, sometimes decades. The truth is, if you live in Michigan, own property here, have a bank account, or have children, you need an Estate Plan. Full stop. Your visa status, green card status, or even undocumented status does not change that basic fact.
What does change is the complexity. Non-citizens face a unique set of legal considerations that U.S. citizens simply don’t have to think about. Federal estate tax rules treat non-citizen spouses differently. Certain Trust structures that work beautifully for citizen couples can create unexpected tax problems for mixed-citizenship families. And if you own property in multiple countries, Michigan law only goes so far. None of these issues are insurmountable — but they require intentional planning, not a one-size-fits-all approach.
Who Can Create an Estate Plan in Michigan?
Under Michigan law, any person who is 18 years of age or older and of sound mind can create a valid Will. Citizenship is not a requirement. A green card holder, a visa holder, a DACA recipient, or a person without legal immigration status can all sign a Will in Michigan and have it be legally enforceable. The same is true for a Revocable Living Trust, a Power of Attorney, and a Patient Advocate Designation (Michigan’s version of a healthcare directive).
This matters more than most people realize. Imagine a couple who immigrated from Mexico ten years ago. They’ve built a life here — a home, a business, two kids in school. Neither has formal citizenship yet, though one has a green card and the other is on a work visa. If one of them died tomorrow without a Will, Michigan’s intestate succession laws would govern who inherits their assets. Those laws don’t account for your family’s wishes, your cultural values around inheritance, or the specific needs of your children. Having a Will in place changes that entire outcome.
The Estate Tax Problem for Non-Citizen Spouses
This is the area where non-citizens and immigrants face the sharpest difference from their U.S. citizen counterparts, and it’s one that can cost families an enormous amount of money if they don’t plan around it.
Under federal law, a U.S. citizen can leave an unlimited amount of assets to their spouse at death with no federal estate tax. This is called the unlimited marital deduction. It’s one of the most powerful tools in Estate Planning for married couples. But here’s the catch: that unlimited marital deduction is not available when the surviving spouse is not a U.S. citizen, even if they are a lawful permanent resident with a green card.
The federal estate tax exemption for 2024 is $13.61 million per individual. If your estate is under that threshold, this may not affect you directly right now. But that exemption is scheduled to drop significantly after 2025 when the Tax Cuts and Jobs Act provisions sunset. If Congress doesn’t act, the exemption could fall to roughly $7 million or below. For families with significant assets, including real estate equity, retirement accounts, life insurance, and business interests, this becomes a very real concern very quickly.
The primary planning solution for mixed-citizenship couples is a special type of Trust called a Qualified Domestic Trust, or QDOT. A QDOT allows assets to pass to a non-citizen surviving spouse in a way that defers (not eliminates) the federal estate tax until distributions are made from the Trust or the spouse dies. The QDOT has specific structural requirements set by the IRS, including that at least one Trustee must be a U.S. citizen or a U.S. bank. If a QDOT is not set up correctly, the tax deferral is lost. This is not a document to DIY.
There’s one important exception worth knowing. If the non-citizen spouse becomes a U.S. citizen before the estate tax return is due (generally nine months after death), the marital deduction applies fully. For couples where one spouse is in the naturalization process, the timing of that citizenship can be a meaningful planning factor.
What Happens to Property You Own Outside the United States
Many immigrants own real property, bank accounts, or business interests in their home country. A Michigan Will or Trust does not automatically govern what happens to those assets. Different countries have completely different inheritance laws, and some of them don’t recognize foreign Wills at all. Some countries have forced heirship rules, meaning a portion of your estate must go to certain relatives regardless of what your Will or Trust says.
If you own real estate in another country, you likely need a separate Will or Estate Plan created under the laws of that country, in addition to your Michigan Estate Plan. Your Michigan attorney can help you identify what you need and can coordinate with local counsel abroad if necessary. The important thing is not to assume that your Michigan Will covers everything. It almost certainly doesn’t reach across international borders the way you’d hope.
Foreign bank accounts and investments add another layer. Depending on the country, there may be tax reporting requirements in both the U.S. and abroad. The IRS requires U.S. residents (including green card holders and certain visa holders) to report foreign financial accounts under FBAR (the Foreign Bank Account Report) rules if account balances exceed certain thresholds. While this is primarily a tax compliance issue rather than an Estate Planning issue, it connects directly to estate administration. Your Personal Representative (executor) will need to know about these accounts to properly settle your estate, and if accounts were not properly reported during your lifetime, that can create complications for your heirs.
Planning for Children When Parents Have Uncertain Immigration Status
For immigrant parents, naming a guardian for minor children in a Will is not just a good idea — it may be one of the most critical decisions they ever make. If both parents died or became incapacitated and no guardian was named, a Michigan probate court would decide who raises your children. The court will consider the best interests of the child, but it will not automatically know your wishes, your family’s values, or whom you trust.
This concern is amplified for families where the children are U.S. citizens by birth but the parents are not. If something happened to both parents and there were immigration enforcement concerns or other complications, having a clear, legally documented guardian designation becomes even more important. The guardian you name should be someone who is legally authorized to be in the United States and who understands what raising your children would actually require.
Some parents in this situation also want to name a guardian who lives in their home country as a backup option. While Michigan courts give significant weight to the guardian named in a Will, a guardian who lives abroad raises practical and legal complications. It’s worth having a direct conversation with your Estate Planning attorney about how to handle this realistically, including whether a Standby Guardian designation (a separate legal document available in Michigan) makes sense for your family.
Disability Planning Matters Just as Much as Death Planning
A Power of Attorney and a Patient Advocate Designation are just as important for non-citizens as for anyone else. A Power of Attorney names someone to manage your financial and legal affairs if you become incapacitated. A Patient Advocate Designation names someone to make medical decisions on your behalf if you can’t make them yourself.
For immigrants, there’s an additional layer to think about. If you become incapacitated and have no Power of Attorney in place, your family would need to go through Michigan’s guardianship and conservatorship process in probate court to get legal authority to act for you. That process is time-consuming and expensive. If family members who would be most likely to help you are located outside the United States, the logistical barriers get even higher. A properly drafted Power of Attorney removes that barrier entirely by giving a trusted person authority right away, without court involvement.
When choosing an agent under a Power of Attorney, you want someone who is reliable, financially trustworthy, and practically able to act. That person does not need to be a U.S. citizen. They do need to be an adult and someone you genuinely trust with access to your financial life.
Beneficiary Designations and Joint Ownership
Many assets, including retirement accounts, life insurance policies, and bank accounts with payable-on-death designations, pass directly to named beneficiaries regardless of what your Will says. This is true whether you are a citizen or not. Making sure your beneficiary designations are current and accurate is essential.
One thing to be aware of: if you name a non-citizen spouse as the beneficiary of a retirement account like an IRA, there are specific rules about how that spouse can take distributions after your death. Non-citizen spouses cannot treat an inherited IRA as their own the way citizen spouses can. They are treated as non-spouse beneficiaries under federal tax law, which affects the distribution timeline and the tax consequences. This is worth discussing with both an Estate Planning attorney and a financial advisor who understands the rules for non-citizen beneficiaries.
Getting Started: What to Bring to Your First Meeting
If you’re ready to create or update an estate plan, coming prepared will make the process much smoother. You don’t need to have everything figured out, but gathering the following information ahead of time will help your attorney understand your full picture:
- A list of your assets, including real estate, bank accounts, investment accounts, retirement accounts, life insurance, and any business interests
- Information about any property or accounts you own outside the United States
- Your current immigration status and your spouse’s immigration status, if applicable
- The names and ages of your children, and your thoughts on who should raise them if you couldn’t
- The names of people you trust to serve as your personal representative, Trustee, and agent under a Power of Attorney
- Any existing Wills, Trusts, or beneficiary designation forms you already have
You don’t need to walk in with all the answers. A good Estate Planning attorney will ask you the right questions and help you think through the decisions that matter most. What you do need is to start. The risks of waiting are real, and they fall hardest on the people you love most.
Your Family Deserves the Same Protection as Anyone Else’s
Estate Planning is fundamentally about protecting the people and things you care about. It doesn’t belong only to citizens, only to the wealthy, or only to people who have been here their whole lives. If you’ve built a life in Michigan, that life deserves a plan.
The legal landscape for non-citizens does involve some extra complexity, particularly around federal estate tax and international assets. But that complexity is manageable with the right guidance. At LADIES IN LAW®, we work with clients from all kinds of backgrounds and immigration situations to create estate plans that actually reflect their lives. If you have questions about your specific situation, we’d love to talk.
