2.4.11 The financing of the probate costs

States may view death taxes as an appropriate toll charged for the use of the probate machinery (when probate is required) and for other services used in facilitating the transfer of private property at death. The financing of the probate costs justification is more specific to the profit justification since it applies only to death taxes. This justification is associated with the particular service connected with the institution of an inheritance or bequest. West mentioned that, as these services are conferred by positive law, those who benefit from these services owe something to the state in return for the legal regulations which give them the right to the property of another after his death, for the proceedings necessary to put them in possession, and for the protection of the property in the meantime, when it would be especially liable to unlawful depredation.1

Moreover, according to West, this justification justifies progressive tax rates based on the relationship between the parties involved “[a]s there is some degree of probability that property might be transmitted in the direct line in a given case even if there were no laws of inheritance; the state may, therefore, be said to render a greater service when property goes to distant relatives, or strangers in blood, than when it is simply handed down from father to son.”2

This justification does not seem to be a primary one, as not all states require that assets have to go through a probate process. Furthermore, the tax burden, in some cases, might be disproportionate to the aim of the financing of the probate costs.