In estate planning, terms like intestate and probate get tossed around a lot—and it’s easy to see why people mix them up. They’re both legal concepts tied to how assets are handled after someone passes, but they mean very different things. Understanding the distinction can help avoid confusion and, more importantly, make planning for the future feel a little less overwhelming.
When someone passes intestate, it means they didn’t leave a valid will behind. Without clear instructions, the state steps in to determine who inherits the estate. Every state has its own intestate succession laws, which act as a sort of default estate plan—deciding who gets what based on family relationships.
Imagine this:
Let’s say Jamie, a single parent with two kids, unexpectedly passes away without a will. Since Jamie didn’t leave behind instructions, the state’s intestate succession laws kick in. Most likely, the assets will go directly to Jamie’s children in equal shares. However, if Jamie had wanted to leave something specific to a close friend or charity, there’s no official record of those wishes.
Passing intestate means letting state laws decide who inherits assets—no input from the person who passed away, no special considerations.
What Is Probate?
Probate is the legal process that takes place after someone passes away, whether they had a will or not. It’s how a court validates the will, pays off debts, and ensures assets go where they were intended—or, if there’s no will, according to intestate laws. The process typically costs 3-7% of the estate’s value and can take 1-2 years to complete.
Here’s a scenario to illustrate:
Picture Alex, who thoughtfully drafted a will leaving specific amounts to family members and a donation to a local animal shelter. After Alex’s passing, the will enters probate. The court reviews the document, verifies its authenticity, and makes sure that any outstanding debts are settled before distributing the assets as outlined in the will.
Probate ensures that everything is handled legally and fairly. However, even with a will, probate can take time—sometimes months or years, depending on the estate’s complexity. With a revocable trust, assets can typically avoid probate entirely, transferring directly to beneficiaries without court involvement.
How Are Intestate and Probate Connected?
You might be wondering, “Can intestate and probate happen together?” The answer is yes—and this is where confusion often arises.
If someone passes without a will (intestate), their estate still goes through probate. In this case, instead of following written wishes, the court distributes assets according to state intestacy laws. Probate simply serves as the legal framework for settling the estate—whether a will exists or not. Use our probate cost calculator to estimate what this process might cost in your state.
Key Differences Between Intestate and Probate
Here’s a breakdown of how these two concepts differ:
- Intestate happens when there’s no valid will, and state laws determine how the estate is divided.
- Probate is the legal process that manages asset distribution, debts, and taxes after someone’s passing—whether or not there’s a will.
- When a person passes intestate, probate still occurs, but the court distributes assets according to state intestacy laws.
- Without a valid will, the person has no say in where their assets go.
- Probate ensures that debts are settled and assets are legally transferred. However, it can be a lengthy and sometimes costly process.
Why Does Understanding This Matter?
Intestate and probate are two of the big reasons why having an estate plan is essential. Without proper planning, intestate laws and probate could delay asset distribution or even cause unintended outcomes.
Consider this hypothetical:
Taylor owns a cherished family cabin and wants it to pass specifically to his niece, who has always loved visiting. Without a will, intestate laws might hand the property to another relative by default—someone Taylor didn’t want to inherit the cabin. Probate could also stretch the process out, causing unnecessary stress for his niece.
Intestate and probate are key concepts when trying to make sense of estate planning terminology. While probate is the legal process of sorting out an estate, intestate refers to what happens when there’s no will to guide that process. By creating a clear estate plan—whether through a will or trust—families can avoid these complications and ensure their wishes are honored.
