Signing Under Penalty of Perjury

Emily just received notice her father’s estate is being challenged. Not because of the amount of money involved – it’s a modest estate, well under the probate threshold – but because of a codicil. A codicil, a simple amendment to his original Will, disinherited her brother. Now, that brother is claiming forgery, and Emily, as the named executor, is being asked to swear under penalty of perjury that the codicil is genuine. The potential cost? Years of litigation, emotional distress, and a fractured family. This isn’t about the money anymore; it’s about protecting her father’s final wishes and avoiding a legal quagmire.

As an estate planning attorney and CPA with over 35 years of experience, I’ve seen countless situations where seemingly straightforward estate matters escalate due to issues with Will validity. The “penalty of perjury” isn’t a casual phrase; it’s a serious legal commitment. Let’s break down what it means to sign under penalty of perjury in the context of probate, and what steps you can take to protect yourself.

What Does “Under Penalty of Perjury” Actually Mean?

Essentially, when you sign a document stating something to be true “under penalty of perjury,” you are asserting that the statement is accurate to the best of your knowledge and belief, and that you know making a false statement carries criminal consequences. In California, this can lead to charges of perjury (California Penal Code Section 118), potentially resulting in imprisonment and fines. It’s not just about civil liability; it’s a criminal offense. This is particularly crucial when filing documents with the Court, like declarations related to the authenticity of a Will or codicil.

What Documents Require a Perjury Clause?

Several documents filed during probate often require this clause, including:

• Declarations Regarding Will Validity: As in Emily’s case, if you’re declaring a Will or codicil is genuine, signed freely, and not the result of fraud or duress.
• Requests for Orders: Any petition you submit to the Court requesting a specific action (like being appointed executor) will likely include this clause.
• Accountings: When you’re reporting on the assets and disbursements of the estate, you’re swearing the accounting is true and accurate.
• Claims Against the Estate: Creditors filing claims against the estate must also swear to the truthfulness of their debts.

The Importance of Witness Testimony

If a Will is being contested, witness testimony becomes absolutely critical. Probate Code § 8223 addresses situations where the original Will is lost. You can’t simply submit a copy; you must prove the original Will wasn’t revoked. This often involves finding individuals who witnessed the signing and can testify to its authenticity. Their testimony, given under oath, carries significant weight. The more corroborating evidence you have – witnesses, original documents, even emails discussing the Will – the stronger your position.

What If You’re Unsure of the Facts?

This is where many clients find themselves in a difficult position. What if you believe something is true, but can’t be 100% certain? Never guess. If you have any doubts about the accuracy of a statement, disclose those doubts in your declaration. You can state that you believe something to be true based on information available to you, but acknowledge potential gaps in your knowledge. Honesty and transparency are far better than making a definitive statement you later discover to be inaccurate.

How a CPA Can Help

As a CPA in addition to being an attorney, I can offer a unique perspective. Accurate estate valuation is paramount, particularly when it comes to determining if probate is even necessary. For 2025 and 2026, filing a Petition for Probate (Form DE-111) is mandatory if the decedent’s gross estate value exceeds $208,850. Below this amount, successors should use the Section 13100 Small Estate Affidavit or AB 2016 Petition for Succession instead. Furthermore, understanding the tax implications – especially the potential for a step-up in basis for inherited assets – is crucial for minimizing capital gains taxes. Proper valuation ensures beneficiaries receive the full benefit of this tax advantage.

Protecting Yourself From Liability

• Review All Documents Carefully: Before signing anything, read the document thoroughly and ensure you understand its contents.
• Seek Legal Counsel: Don’t attempt to navigate probate alone. An experienced attorney can guide you through the process and ensure your declarations are accurate and legally sound.
• Gather Supporting Evidence: Collect any documents or information that supports your statements.
• Be Honest and Transparent: If you have any doubts, disclose them.

Emily’s situation highlights the importance of meticulous estate planning and the potential pitfalls of contested Wills. Signing under penalty of perjury is a serious matter, and it’s essential to approach it with caution, honesty, and the guidance of qualified legal counsel.

How do enforcement rules in California probate court shape outcomes for heirs and fiduciaries?

California probate is designed to provide court-supervised transfer of property, yet cases often break down when authority is unclear, required steps are missed, or disputes arise over assets, notice, and fiduciary conduct. When the process is misunderstood, families can face avoidable delay, escalating conflict, and increased exposure to creditor issues, hearings, or litigation before the estate can close.

 
• Appearances: Prepare for the court hearing in probate.

 

• Rules: Follow strict probate procedure requirements.

 

• Organization: Maintain managing a probate case logs.

California probate is most manageable when authority is documented early, assets are classified correctly, and procedure is followed consistently from petition through closing. When the process is approached with realistic expectations about notice, claims, accounting, and dispute risk, the estate is more likely to move toward closure without avoidable conflict or delay.

Verified Authority on the Petition for Probate

• The Petition (Form DE-111): California Probate Code § 8000 (Grounds for Filing)
  This is the document that starts it all. Under Section 8000, any interested person may file this petition to request the court admit a will to probate and appoint a personal representative. Without this filing, the court has no jurisdiction to act.
• Duty to File the Will: California Probate Code § 8200 (Custodian Duty)
  Holding onto the original Will is a liability. The law requires the custodian to deliver the Will to the Superior Court Clerk within 30 days of the death. Hiding or destroying a Will to prevent probate is a serious legal violation.
• Priority for Appointment: California Probate Code § 8461 (Intestacy Hierarchy)
  When there is no Will, the court does not choose the “best” person; it follows a rigid statutory list. The Surviving Spouse has top priority, followed by children, then grandchildren. Understanding this hierarchy helps predict who will win a contested appointment.
• Probate Bond Requirements: California Probate Code § 8482 (Bond Amount)
  The bond acts as an insurance policy to protect beneficiaries from a dishonest executor. The petition must state the estimated value of the estate so the judge can set the bond amount—typically the value of personal property plus one year’s estimated income.
• Independent Administration (IAEA): California Probate Code § 10400
  The box you check here matters. Requesting “Full Authority” under the IAEA allows the executor to manage the estate efficiently (e.g., selling a house) without constant court hearings. Requesting “Limited Authority” forces the estate into a slower, court-supervised process.
• Proving a Lost Will: California Probate Code § 8223
  If the original Will cannot be found, the law presumes the decedent destroyed it with the intent to revoke it. To overcome this presumption, the petitioner must provide clear and convincing evidence that the Will was merely lost, not revoked.