What probate is for, what it costs in each province, and why a clearance certificate holds everything up.
Why this matters in Canada
What probate is for, what it costs in each province, and why a clearance certificate holds everything up.
Canadian law gives you broad freedom to decide who inherits, which is what makes an Islamic distribution enforceable here. What it will not do is apply that distribution on your behalf.
Absent a valid will that can be found, provincial statute decides — and no provincial formula resembles faraid.
The Canadian position
Provincial legislation governs will formalities, intestate distribution, probate cost and the grounds on which a will can be challenged. Those four things differ meaningfully between provinces.
Assets passing by beneficiary designation or by survivorship never enter the estate at all, so they are outside the will. Whether they are also outside the shares is the contested question — do not assume it.
- Formal requirements for signing and witnessing.
- The intestate formula and any preferential share.
- Probate fees, which range from nothing to well over 1%.
- Who may bring a claim against the estate.
The Islamic position
Payment runs in a fixed order: funeral expenses, then debts including unpaid mahr and zakat arrears, then the bequest capped at one third, then the fixed shares.
The shares are conditional on who survives, so a will should express them as fractions rather than fixed amounts.
| Issue | Hanafi | Maliki | Shafi’i | Hanbali |
|---|---|---|---|---|
| Wife with children | One eighth | One eighth | One eighth | One eighth |
| Daughter with a son | Half a son's share | Half a son's share | Half a son's share | Half a son's share |
| Bequest cap | One third | One third | One third | One third |
| Grandfather with siblings | Excludes them | Shares with them | Shares with them | Shares with them |
| Distant kin | Inherit | Classically to the treasury | Classically to the treasury | Inherit |
| Surplus (radd) | Yes | Classically no | Classically no | Yes |
No bayt al-mal operates in Canada, so later Maliki and Shafi'i scholars generally permit radd and inheritance by distant relatives here. Confirm with a scholar of your own school.
What to actually do
- Have the shares calculated for your real family configuration by someone trained in faraid.
- Instruct a lawyer in your province to draft them into a valid will.
- Review every beneficiary designation and how property is held.
- Name an executor and, if you have young children, a guardian and a trustee.
- Record where the original will is kept so it can be found.
Common questions
Does Canadian law require faraid?
No. It permits it. That is why the shares have to be written down rather than assumed.
Which province's law applies?
Generally the one where the estate is administered, and for land the one where it sits.
Do I need both a scholar and a lawyer?
Usually. The scholar confirms the shares; the lawyer makes them enforceable here.
This is legal information only. For advice on your own circumstances, speak to a lawyer.
Citations & sources
Every factual claim on this page traces to a source below. Details change — check the original source before relying on any figure, fee or legal position.
- Apply for probate of an estate — Government of Ontario
- Estate Administration Tax — Government of Ontario
- Estates Act, RSO 1990, c E.21 — Government of Ontario
- What to do when someone has died — Canada Revenue Agency
- Income Tax Act, RSC 1985, c 1 (5th Supp) — Justice Laws Canada