EVERYBODY DIES. OR, A CONSIDERATION OF SIMULTANEOUS DEATH STATUTES AND THE STRUGGLES OF THE SELF-REPRESENTED

The access to justice problem has been the cause cel ́ ebre of the social ` justice movement in the United States for many years, with calls for the legal community to support legal services programs and contribute pro bono hours. It is a problem that reaches beyond the poorest and most disadvantaged-the working-class and middle-class are ineligible for legal services programs but often find themselves unable to afford standard attorney rates. While the majority of Americans are fairly classified as middle-class, these individuals are invisible to the estate planning community unless they have had the good fortune to accumulate enough property to be characterized as upper-middle-class and afford the services of a professional. Although access to information through technology should allow basic legal issues to be resolved in an efficient and predictable manner, the reality is that the complexity of the system interferes. The business of dying has become extremely lucrative for estate planning attorneys and probate practitioners, and the legal process is designed to accommodate the represented. To that end, an overarching purpose of this Article is to explore the idea of revising probate statutes to protect the self-represented from an obvious pitfall, especially when and where it is clear that the underrepresented and unrepresented are going to blindly fall into the pit. This discussion is framed within the context of an obvious flaw that presently exists in states that allow holographic wills: protection of the layperson from simultaneous or closely proximate death scenarios. Twenty-six states recognize the validity of holographic wills, which are wholly or partially handwritten wills commonly utilized by the self-represented testator. While the will of a competently represented testator contains survivorship language as a matter of course, the holographic will of the self-represented layperson is unlikely to include the legalese of survivorship language. Only ten of the twenty-six states authorizing holographic instruments have adopted language that protects the instruments with a default 120-hour rule in the absence of contrary language. The remaining sixteen states have chosen to implement incomplete language that does not apply the 120-hour rule to holographic instruments, or alternatively, to reject adoption of the 120-hour rule altogether. The consequence is that while twenty-six states have authorized holographic wills as a convenience for those un