Intestate and Probate: What’s the Difference?

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.

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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 it.

Passing intestate means letting state laws decide who inherits assets—no input from the grantor, no special considerations.

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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 the grantor wanted them to—or, if there’s no will, according to intestate laws. (Note: with a trust, unlike a will, you can typically avoid probate.)

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, depending on the estate’s complexity. 

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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 the grantor’s 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.

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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 grantor 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. 

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Why Does Understanding This Matter?

Intestate and probate are two of the big reasons why having an estate plan is essential. Without one, 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 you’re trying to make sense of estate planning. 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. Which isn’t ideal. By creating a clear estate plan, grantors can make things a lot easier down the road.