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§ 8.6 ESTATE PLANNING PRINCIPLESserve, managing and utilizing the property for the individual’s benefit. Thisapproach avoids the need for a court to appoint a conservator of the property.The individual may name beneficiaries to receive assets from the trust. Atdeath, any property owned by the trust or any assets transferred to the trust byreason of death (such as life insurance proceeds, if the trust was designated asthe beneficiary) will be distributed to the beneficiaries in the manner specified inthe trust agreement. In this regard, the trust instrument functions in the samefashion as a will. 185Another benefit of a revocable trust is that assets owned by the trust at thedeath of the grantor are not subject to probate. Likewise, assets that are notowned solely in the decedent’s name, or that name beneficiaries pursuant to acontract, are not subject to probate at death. These assets include benefits fromindividual retirement accounts, other retirement plans, life insurance proceeds,and property with a “pay-on-death” or “transfer-on-death” designation underwhich the death benefits or property are paid or transferred directly to the designatedbeneficiary on death. In addition, property held in joint tenancy will notbe subject to probate on the occasion of the death of the joint tenant who is thefirst to die. In the event of the simultaneous deaths of the joint tenants, however,or in the event the surviving joint tenant owns property in his or her name at thetime of death, the property will be subject to probate.(h) DisclaimersWhen preparing a revocable living trust, the estate planner should include a disclaimerprovision giving the surviving spouse the opportunity to reduce or eliminatefuture estate taxes. The trust would provide that, on the death of the first ofthe spouses to die, the designated successor trustee of the deceased spouse’strust will set aside the trust assets for the benefit of the surviving spouse in aseparate trust share, for example, Trust A. Any property allocated to Trust Ashould qualify for the unlimited marital deduction and, therefore, will not besubject to any federal estate tax at the death of the first of the spouses to die.Trust A would provide that while the surviving spouse is living, he or shewill be entitled to all of the net income of Trust A, as well as trustee-approveddistributions of principal from Trust A for the surviving spouse’s health, education,maintenance, and support. Also, the surviving spouse would have theabsolute right to withdraw any or all of the principal of Trust A. Therefore,unless the surviving spouse is incapacitated, in which case the successor trusteewill hold the assets for the surviving spouse’s benefit, the surviving spouse willhave complete control over the assets of Trust A and will most likely withdrawthose assets and add them to his or her own trust.Each trust would, however, also direct a different distribution of propertythat the surviving spouse disclaims. (A disclaimer is an irrevocable and unqualifiedrefusal to accept a gift of property.) Under this arrangement, the survivingspouse can elect to refuse to accept any or all of the property that would otherwisepass to the surviving spouse from Trust A. The trusts would provide that,185 See § 6(i). 253