California Proof of Subscribing Witness–Form DE-131

I just Keith Davidson Albertson Davidson in this video we're gonna go over form de 131 which is the proof of subscribing witnesses so in this series we've been starting off by going over the documents that you need to file along with your petition for probate and then one we're going to talk about in this video you may or may not have to file depending on the type of will you have so first of all if you're filing to open a probate for a decedent who died without a will then you're not going to need this form because you're not asking that it will be admitted to probate and so there is no will and so you can completely skip this form in this video if you are asking the court to admit a will to probate then the question becomes well is that the type of will that has what we call a self-proving affidavit in it or does it not and that's going to determine whether you need this form or not so let's walk through and I'll show you exactly what that means so what we always start off at Google we do a search for Judicial Council forms and we can go straight to the Judicial Council website pop down here to our probate forms decedent's estates and see the form this is the type of form that a lot of people aren't aware of so we're going to de 131 proof of subscribing witness a lot of people won't even know that they need this until they filed our petition for probate and then right before the hearing they'll get a note the court puts out probate notes that you can look up on the court website and the court might say the Wills not self proving they're for proof of subscribing witnesses required and that's usually the first time that somebody learns of this form or even that there's a problem because it's kind of a sneaky issue it's easy to miss and then all of a sudden you'll be scrambling you'll be saying well what does that even mean and what form do I need so let's go to the form this is the form here and let's talk about why you would need this form so I'm gonna pop over here to a will this is an actual attestation Clause that we use in Wills you know when we do wills and there's some information in here that is critically important for the court to be able to admit this will to probate so every will that's typed out like this it's not in the decedent's own handwriting has to be witnessed by two witnesses in California in order for it to be a valid will wheels are not notarized by the way so notarizing this will wouldn't wouldn't help wouldn't have any effect at all so skip the notary you need two witnesses but look at what the witnesses are saying here so in this clause they're saying that we know Scot Smith he is an adult and so is each of us which is good because to be a witness to a will you need to be over 18 we watch Scott Smith signed the document before signing Scott Smith declared to us that this was his will asked us to serve as witnesses and then he signed it in our presence and we each signed below in his presence and that's important because the witnesses and the and the person creating the will the testator they have to be all present at the same time in order for the witnessing to be effective to be legally valid and then it goes on to say we understand that this document is scott smith well we believe that Smith was acting voluntarily in signing this will and we're not aware of any facts that would indicate otherwise and as far as we're concerned the people signing he was not acting under menace fraud or the undue influence of any person and then they sign this under penalty of perjury so you don't necessarily have to have all this language in a will to make it valid though you could have two witnesses simply witness the will saying I witnessed this will and it would still be a valid will but if you don't have this specific language right here that's signed under penalty of perjury at the end of your will then you're gonna need this form and the witnesses are gonna have to sign a proof of subscribing witness at the time that you try to admit the will to probate if you do have this as test station Clause at the end of your will and it has this language in it and it's signed under penalty of perjury then you won't need this form de 1:31 and believe me if you can get away from having to do a de 131 you should do it because it is a pain in the rear so most wheels will have this attestation Clause sometimes it'll call be called a self-proving affidavit it doesn't matter what they call it it's all the same this is a self-proving affidavit and the reason it's an affidavit is because it's signed under penalty of perjury that's all that means and the reason it's self-proving is because the witnesses down here they didn't just witness the will but they also gave a statement an affidavit is a statement and a statement under oath and that statement is we were all together we were in the same room we saw scott smith sign it and we weren't aware of any undue influence fraud duress or menace and so that is what makes this a self-proving will as it has that statement signed under penalty of perjury so hopefully your will has that if it doesn't you're gonna be stuck with this form and the reason why this form is a pain in the rear is because now you have to go out and find those witnesses well you might have a will that was signed and witnessed 20 30 40 years ago who knows I mean sometimes these wills are really old and now you have to hunt down these witnesses and the witnesses may not have been people who even knew the testator I mean sometimes people will go to a bank or you know their accountants office or their lawyer's office to sign a will and the people witnessing that will they're just kind of around and they sign it but they don't put down their address they don't put down their phone number and now you have to go out and you have to hunt these people down if they're even still living and you have to have them sign this form so you can imagine it can be a nightmare so hopefully you don't need to do this but if you do then we'll see what we're gonna do here so we're gonna do the estate of Rachel Smith that's the made-up estate we've been using and then you're gonna put in your case number if you have one if you're feeling this that form out before you file your petition for probate what you really should be doing you should know if you need this form and you should be working on it before you file your petition then you can just leave the case number blank you'll fill that in when you file this along with your petition and then you have to select the boxes down here what you're gonna have to talk to the witnesses about so first of all the name of the decedent was signed in the presence of the at testing witnesses president the same time by the decedent personally wills can be signed by another person and the decedent's presence and by the decedent's direction so if somebody doesn't have the physical ability to sign they can direct somebody else to sign for them as long as everybody's present it's a little quirk and we'll creation law but it is allowable B is where a will was signed outside the presence of a witness which is fine you can do that but then when the witnesses come together the testator simply acknowledges that I'm the one who signed this that's my signature will you please witness it so you're gonna choose either A or B you're gonna have to talk to the witnesses about that most the time it's going to be a usually a will as signed in the presence of the witnesses but the witnesses will need to tell you that assuming they even remember that'll be that'll be interesting and then C is the decedent acknowledge in the presence of the attesting witnesses present at the same time that the instrument signed was decedent's either will or codicil so you're always going to check C and if it's a will or caught us hole sometimes it's both maybe they did a will and an amendment at the same time it's kind of rare but it could happen number two when I signed the Instrument I understood it was the decedent's will or codicil so the witness has to say that and number three I have no knowledge of any facts indicating that the instrument or any part of it was procured by duress menace fraud or undue influence remember that was the same language we saw over here in the attestation Clause so we're not aware of any facts that would indicate that Scot Smith here was under duress Menace fraud or undue influence you see how it's the same language it's the exact same language that's because it's doing the exact same thing and now this proof of subscribing witness has to be signed under penalty of perjury attesting under oath to the facts that are above in this form well that's the same thing that happened here on the attestation Clause as the witness is signed under penalty of perjury that these facts stated above are true so you'll see that it's the exact same thing it's just that when you have a will with an attestation Clause or self-proving clause as they call it they're the witnesses are signing it right then and there at the same time that they witness the will with this form they didn't sign it at the time that they witnessed a will and so now you have to go back and get it and like I said that can be a challenge so then you'll date it whoever was the witness you know Sally oops so let's say Sally Smith well shouldn't be somebody who's related Holly Roberts signed it you'll put the address and then you'll have to have that witness sign it if you can find them so now you'll see out the attorneys certification this is where your attorney will sign saying that I declared a penalty of perjury into the law of the state of California that attachment one is a photographic copy of every page of the will so remember that the witness is filling out this information relative to the will that you're submitting to probate so they're making facts they're stating facts under oath that help support that will so that will has to be attached in order to support this form so that's the form de 131 proof of subscribing witness I sincerely hope that you don't need to use this form but if you do now you know a little something about it and hopefully you know a little something as to why you may need this form and you should check your will before you file your petition for probate because you'll know based on whether or not it has this type of language in the back and whether or not it was signed by the witness under penalty of perjury you'll know if you need this form in advance and if you don't see this type of language in your will you're gonna need this form and so you better get started on it right away because it's not always easy to find those witnesses so that's our review of the form de 131 who's a subscriber [Music] [Applause] you.