Family vs Accountants

Family: Put one or the other of the two properties in the trust.

Accountants: Put part of both properties in the trust.

There are two parcels of real estate. The family instructs the accountants to put the entirety of one or the other parcel into the trust, which ever parcel Jean O'Connell wants. The accountants entangle both. The family is powerless against the accountants.

Either one or the other property for trust

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Feb     15         16                                 17            
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Jan                                               62     63       64
Feb                         65             66 67 68*       69     70        
Mar     71     72           73         74 75                     76      
April                   77                             78 79*            
May 80             81               82 83   84   85           86        
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July 91                                         92                  
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Either one or the other property for trust


1985.06.18    (Anthony O'Connell to Joanne Barnes) (Copies to Jean O'Connell and Jesse Wilson)
"Thank you for your time and expertise in discussing the intended trust in the above estate.  Would you, as a Virginia resident and accountant for Mrs. Jean O'Connell , my Mother and executor of the estate, accept the position of agent to receive notices and processes from the Court and Commissioner of Accounts concerning this trust?  The trust is to be funded from the assets now remaining in the estate inventory, ie, real estate.  I would contest a cash substitution.  The final estate filing should contain the entirety of the Springfield residence or the entirety of the Accotink property, which ever my Mother wishes to be placed in the trust.  Please advise me when the final estate filing is complete in order that I may schedule a trip to Fairfax and set up the trust.
Sincerely, Anthony M. O'Connell   Trustee in the above estate"
(No response)

1985.06.20   (Anthony O'Connell to Henry Mackall) (No copy to another)
"In reference to our phone conversation, thanks for taking the job.  The enclosed Commissioner accounts letter explains the situation. 
I need you, unless you advise me otherwise, to:
1.  Get the appropriate assets in the trust according to the 50% - 50% intention of the will. To my mind that would include the entirety of one or the other pieces of real estate.  This, I think, involves contacting my Mother's accountant who is now, or has just completed, the final estate account.  Her name and address is:
Ms Joan Barnes
Bruner, Kane and McCarthy
300 North Lee Street P.  O. Box 1250
 Alexandria, Virginia 22314
Tel (703) 549-7800 
2. Take me through the point where I am recognized by the court as Trustee.  
3.   Advise me on what ever you think is important in this situation [Can we use an alternative valuation of the real estate to avoid huge ??? future capital gains?] 
My mother is scared and upset of losing control to a trust.  I know I don't have to ask that you be gentle in any contact with her.  It would be most beneficial beneficial for all if any contact with her is done by a woman, if possible.
Thank you
Sincerely, Anthony M. O'Connell "

1985.07.16  (Anthony O'Connell to Jean O'Connell ) (No copy to another)
July 16, 1985
First, let me discuss the trust.
The lawyer I asked to help me, Henry Mackall, said that a certain percentage of each piece of real estate rather than the entirety of one piece, was to be in the trust, as he suggested this to Ms Barnes.  If that's the way you want it, it's fine with me.  That was different from what we agreed on.  In short. If that is the way you want it, fine.
I have not heard anything from Ms. Barnes.
Also, from my law 
My lawyer also said that he thought I did not need a co-trustee, contrary to the letter from the commissioner of accounts.  I wrote the commissioner of accounts requesting a definitive answer.
Frankly, I doubt if I ever get an answer from them. 
I asked Andy Higham if he would serve as co-trustee.  He has agreed. He is already a trustee several times including trustee for Olivette Church.   He would not charge anything, though I insisted he be charge an hourly fee.  Would you be comfortable with Andy Higham as co-trustee?  Andy is a man of very high integrity"
Sincerely, Tony
It's very hot here. Went to the Black River, about 2 hours south of here last weekend.
The Black River is a clear fast moving small river great for canoeing. But this year, I couldn't believe it, they there were dozens and dozens of 3-wheel motor cycles tearing along the bank, and in the water (The're especially designed not to stop in the water).  It was horrible. The canoe business was down 70% people said.
I got honey out of the combs last week, that is, I extracted it. I weighed it and it came out to a little over 200 lbs! The bees, also for the first time, filled up those those little (4 ½" x 4 ½ ")  wooden frame.  I have about 18 of those. So- It was a terrif bountiful harvest.
I will probable be at Sheila's in Portland in the next week two weeks. So- If you try to reach me and I ' m not here, please try there.
Love, Tony"

1985.09.05   (H. A. Higham to Anthony OConnell)
"I am in receipt of and have made a preliminary review of the Estate papers of your father. 
I have no problem with serving as co-trustee provided we see eye to eye on how the trust is to be funded.  It would appear to me that, as is often the case, there is no "cash" to fund the trust.  Therefore, several options are available to secure the trust's assets. 
A - First would be to simply record the trusts interests in the real estate and divide the stock based on the vested interests of the trust. 
B - Negotiate a trade of real estate based on current market values with your mother and settle the difference with the stock.  This would give Mrs. OConnell the properties of her residence and the trust, Accotink.  
C - Forced liquidation, which I am opposed to. 
If your goal is some part of A or B I will serve as C0-trustee - implement the appraisals and negotiations as so directed.  If your position is forced liquidation I would not wish to serve as co-trustee. 
Please advise.  
By the way my legal name is: 
Herbert Anderson Higham 
6208 Higham Drive 
Alexandria, VA 22310
Yours truly, H. A. Higham"

1985.09.12   (Anthony O'Connell to H A Higham) (No copy to another)
"Sorry about the mistakes in your name, address and telephone number.  It has been corrected with the Commissioner of Accounts.   In response to your options mentioned in your letter of September 5, 1985:  
C - Forced liquidation.  No way.  Never thought of it. 
B - Trade of real estate. J. M. O"Connell and I were initially in agreement on this.  She chose to put her residence in trust and the Accotink property totally in her name.  Her accountant, Joanne Barnes,  convinced her some where along the way to record the trust interest as is, ie., a portion of each property to be placed in the trust.  I have no problem with this split. [I accidently got this backwards. My mother and I both agreed that the entirety of Accotink would go in the Trust and no part of the residence would go in the trust]
A - Simply record the trust interest in the real estate.  Choice of me and J. M. O'Connell .  I am actively pursuing this option.  Although it is slightly unwieldy, it does not require appraisals (dubious anyway) and avoids a source of contention from here and everafter on did the trust or J. M. O'Connell gain or lose.   Your letter reminded me that the best contribution I could make to my family with respect to this estate is having you as co-trustee.  Thank you. 
Sincerely, Anthony O'Connell "


1985.06.25   (Henry Mackall to Anthony O’Connell)
" I received your letter with the enclosures regarding your father' s estate and the trust referred to in the Will.  From looking at the documents you sent me, it appears that the trust created by the Will was devised a 92.2% interest in each of the real estate interests included in the estate.  Because the estate interest was only 50%, this would mean that the interest of the trust in each parcel of real estate is 46.1%.  Your mother has apparently paid all of the real estate taxes from the date of your father's death and the trust would owe her 46.1% of those taxes.  It seems to me that a final account would be very simple, merely reflecting the ownership percentages as distributions.  No formal deed would be required . Obviously if either you or your mother wanted to sell, the other would have to agree.  I notice from your letter to Joan Barnes you state that the trust should contain all of one or the other of the two properties.  Is there some reason why you do not wish to have the 46.1% interest in each of the properties in the trust?   
As soon as you advise me on this and on the response you receive from Ms. Barnes, I will have my associate, Amy Blanchard, contact your mother to see if we can’t get this resolves
Sincerely, Henry C. Mackall”

"later non-taxable exchange.-" Comment: I believe this puts an entanglement upon an entaglement to get back to the family's instructions, but with both properties irreversably in the accountants control.

1985.08.16   (Joanne Barnes to Jean O’Connell)
"RE: Estate of Harold M. O'Connell
Dear Mrs. O’Connell:
Your son requested that I furnish him copies of the Court Accountings that had been filed for the Estate.  I have sent them on to him today.  I am also enclosing a copy of the schedule which I believe reflects the fraction of the estate’s one-half interest in each property to which you and the Trust are entitled.   If the transfers are made in these percentages, you would then own 56.475% of each property (50% owned individually plus 12.95% of one-half interest in a property.  If you and the Trust chose at some time in the future to exchange all or part of an interest in a property,  I believe it should be done based on the then current fair market value of the properties.  In such case,  I would recommend that you have the properties appraised by a qualified real estate appraiser.  With regards to your request that I serve as co-trustee of the Trust with your son, I regret that I must decline to be either co-trustee or act as agent to receive notices and processes for him.   Please call me and we can discuss this further.
Very truly yours,
Joanne L. Barnes
Cc: Mr. Anthony M. O’Connell”

1986.01.24   (Edward White to Jean O'Connell) (No copy to another) ((I did not know of this letter until Henry Mackall sent me a copy on August 29, 1995)
"I spoke to Mr. Mackall on January 22nd as to the causes of the delay in obtaining the agreement from your son. 
He stated that he had had several discussions with your son and they ironed out some minor details, and that the agreement being sent to Anthony on be signed on that date.  As soon as I receive it, I will review it and forward it to you for your signature.  As soon as that is done, we can proceed to wrap up the rest of the Estate. 
I spoke to Mr. John McEnearney of McEneraney & Associates, Realtors, and he will contact you concerning putting a value on your property. 
Mr. McEnearney has been highly recommended to me by another appraiser,  and the advantage of this approach is that you will not incur a large appraisal fee.  However, there is no question that putting an appraisal price on this property will be most difficult in view of the numerous variables which might be encountered by a prospective buyer, especially zoning permits, etc.  
I will be in touch with you as further developments occur.
Sincerely, Edward J. White"