When you have a probate, you have a circumstance where the decedent had the obligation to distribute assets based on the Islamic Rules of Inheritance. In all likelihood, that obligation was not fulfilled and some sort of injustice is being done.
It is now the obligation of the persons receiving this wealth to then distribute this wealth in accordance with the Islamic Rules of Inheritance. Assets will pass based on the state intestacy statute or some other ill-conceived formula, family members can make it right. Simple? Not really. This is true even if everyone agrees redistribution is the right thing to do.
When you receive property, it becomes yours. Then you give it to someone at your own direction, it becomes a gift. That gift may have tax consequences. The term used for such a gift is an "assignment" in the inheritance context.
Another term is "disclaimer." This is a legal "thanks but no thanks." The property is treated as though the person making the disclaimer does not exist. This is generally not treated as a gift by taxing authorities. Unfortunately, in the inheritance context, particularly if you wish to direct inheritance based on the Islamic Rules of Inheritance, you are looking at an assignment.
The lesson here, plan before your death. If your family member is already deceased, you will need to consider the tax ramifications of getting and giving away inheritance to make sure you are following the Islamic Rules of Inheritance.
ASAK;
What are we doing as a community, with educated lawyers like you at our disposal to bring about CHANGES in the US legal system that will allow:
Islamic Family Rights ( as in India which is also a democracy)
Independent Islamic Inheritance per our family laws (marginal taxes notwithstanding)
The broader question – A person pays income tax all their lives. In Islam we pay a flat rate Wealth Tax (Zakaah, based on certain conditions being fulfilled). In any society – Why should there be a tax on death? ( What is its “Raison de’etre” and nexus to social welfare ( assuming that taxes are extracted for this purpose) ?
Mahatma Gandhi wrecked the British over unfair laws via non-violent protests, gathering momentum with his supporters. King did the same over Civil Rights in a quasi-barbaric society only 40 years ago. So where are we in terms of a movement towards justice?
I am not a lawyer but would certainly like to be enlightened as to the appropriateness of any tax related to family laws. For that matter, why is polygamy illegal and adultery not – Which one does more damage to society? If it is so only to disallow polygyny, a more difficult proposition in a scientifically imperfect environment (obviously, from an Islamic perspective polygyny is prohibited), then this can only be understood as fair if adultery too is considered a punishable offence, albeit based on evidence. These are relevant questions that any “civilized”society ought to ask itself. JZK.
Thank you for your comment. You generally do have the ability to use the marketplace of ideas to change minds over time and perhaps obtain the change you believe would be beneficial. There was a movement, particularly around the 2000 election to eliminate the federal estate tax, which actually happened for one year. However it is returning. The basic idea was to break up large concentrations of wealth so as to not allow hereditary dynasties to become too powerful. That is the thought behind the policy. Its effectiveness or value is another matter.
As to your question on polygyny; in Islam, its permissible (for up to 4 wives) but is not legal in the United States. There is a significant movement for legalization of this practice, which is likely to occur through the courts through a constitutional “liberty interest”