Trustee attempts
1
Withhold
I don't understand why Joanne Barnes never contacted me as nominated trustee or told Jean O'Connell or Anthony O'Connell that to carry out the terms of the Will of H. A. O'Connell a final account had to be filed with the court. A final account would automatically transfer the residual estate to the trust to fund the trust and automatically close out the estate. The assets of the estate and the assets of the intended Rrust would then be taken out of the control of the accountnts and into to the control of the family and the nominated trustee (unless the accountants can supplant the nominated trustee)
I don't understand why the accountants never told the family about the required qualification procedure for the nominated trustee of the testamentary trust under the will of H. A. O'Connell, or why the accountants never prepared the final estate account which would automatically fund the trust.
2
False final account
Insert Moms memo
3
Delay
(False paper trail "draft-deed-howmuch")
I don't understand why the accountants make it appear that the trustee is responsible for the accountants withholding the final estate account.
1985.05.08+ (Jean OConnell's
"So Kaiser-Hilton. Joanne - 549-7800
My son Tony called. He said he wanted very much to be the full trustee with an agent to receive notices and processes from the court & commissioner as in the May 8th letter. Would First thing is to have the final accounting based on same figures as in the 1st accting. Send it to me- do I have to sign it"
(Editing note: The following was apparently what Joanne Barnes told Jean OConnell)
call- will do draft of final acting. Deed to property-convey to court. Needs how much
1986.04.25 (Edward White to Henry Mackall, copy to Jean O'Connell)
"Enclosed is the draft by Ms. Barnes of the Final Accounting.
I have taken the liberty of correcting a typographical error on the distributions to reflect 53.9006% vice 3.9006%.
I would appreciate it if you would forward this to Mr. O'Connell and clarify with him his intention to qualify on May 1st.
If he does not agree or requests further delaying tactics, I feel that I have no other recourse in serving my client than to seek to have him removed as a Trustee. This matter is costing Mrs. O'Connell dearly with the delay.
Sincerely, Edward J. White
1986.06.26 (Edward White to Jean O'Connell)
"At last, we are ready to file the final Accounting in this case.
In order to spare you having to mail documents back and forth, I am notifying Jo Ann Barnes to begin the accounting and sending her a copy of the Agreement wherein your son and Mr. Higham acknowledge receipt of the Trust property.
Miss Barnes will contact you at the time your signature is needed.
Sincerely, Edward J. White"
4
Two attorneys
Insert
- Moms May 30
- (before Mackall contacts CPA)
Mackall BCPA vs Mackal ACPA (After
contacting CPA) Mackall before contacting CPA vs Mackall after [contacting] CPA
- my june 20 hiring Mackall
- Mackal to me
- memo goodman
- White's Oct 24
- White's "my client" letter (insert all white's letters?)
- My Dec 24, 1987 to White (to show I knew nothing of Whate White said to mom)
5
Boxed in a dead end
(Only option Joanne Barnes for co-trustee)
I don't understand why the accountants only allow the family to choose Joanne Barnes as resident co-trustee and then the trustee is made to appear resposible for Joanne Barnes refusing.
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”
1985.07.08 (Henry Mackall to Anthony O’Connell)
"I have spoken with Ms Barnes who agreed with my suggestion that a final account be filed by your mother reflecting the trust's ownership of an undivided percentage interest in the real estate. Funds advanced by your mother to pay the trust's share of the real estate taxes would be treated as a liability of the trust to be repaid when the realty is sold. She advised me that the percentages were not exactly as earlier calculated because of a slight difference in some jointly owned property. She is sending me a new computation which I will forward when it arrives.
In the letter your mother received from Mr. McCandlish, mention was made of your being able to qualify without a co-trustee if you appointed an agent on whom process might be served. I assume he was talking about Section 26-59 of our Code which deals with non-resident fiduciaries. I don’t believe it is applicable to your situation. Because of this and because of it would make your mother more comfortable, I discussed with Ms. Barnes the idea of her qualifying as a co-trustee with you. She has agreed. You’re your mother is the sole beneficiary of the trust during her lifetime and is willing to forego any income from the trust there seems no need to sell the land. It has proven to be a good investment and your mother seems willing and able to continue to pay the real estate taxes as they accrue. The Will contains a waiver of bond for the trustee so that expense can be avoided. After an initial account there will only be a requirement to file one every three years showing no activity. When land is sold this situation will change but, at least for now, there will be little expense. I think we can plan for you to come east at a time when Ms. Barnes is available so the two of you can qualify as trustees. The estate can be closed with little effort.
Sincerely, Henry C. Mackall”
1985.07.11 (Henry Mackall to Joanne Barnes)
"Following my phone conversation with you, I reported to Mr. O'Connell that you and I had agreed on a procedure1which could be followed in connection with closing the Estate of his father and I recommended that procedure to him. He has just advised me by phone that the procedure is not acceptable. As a result of our phone conversation I am no longer representing him.
Sincerely, Henry C. Mackall”
1The procedure was arranging to have Joanne Barnes be my co-trustee without asking me.
1985.10.07 (Henry Mackall to Anthony O’Connell)
"Thank you for your letter of September 23 regarding your father's Estate. I will be happy to try to help you. I have serious problems with the limitations you wish to place on me. I believe a great deal can be accomplished by free and open discussion between counsel and I cannot see any harm in throwing out possible alternatives during such a discussion. I cannot hang up each time a new subject comes up in order to get instructions. I never commit a client to any particular course without his approval but I might well discuss actions which later turn out to be unacceptable to the client.
Your plan sounds fine but you cannot insist on it and be certain it will be adopted. There is no problem with funding the trusts as suggested. It seems the only practical way.
I do not know anything about Mr. Higham. I think your mother’s wishes must be considered since she is a beneficiary. I know the Court will consider her desires before it makes an appointment.
I see no reason why the intended final account has to be reviewed and approved before it is filed. If it is wrong, objections can be made before the Commissioner of Accounts. If we reach an agreement I assume the account will be drawn as we discussed earlier and that we’ll have some input. If you want me to help further please let me know.
Sincerely, Henry C. Mackall”
3 obstacle removed
Robert McCandlish’s letter of August 19, 1985, allowed the family to choose a co-trustee other than Joanne Barnes.
1985.07.16 (Robert McCandlish to Anthony O’Connell)
"This will acknowledge receipt of your letter of July 11, 1985.
Mr. Mackall’s advice is correct, in my opinion, under the circumstances. A resident agent can be appointed to serve with a non-resident personal representative such as an executor or administrator of an estate. However, the exception provided in §26-59 of the Virginia Code does not extend to non-resident trustees. Therefore, I believe that a resident co-trustee will be necessary.
As Mr. Mackall has pointed out, this should not be the cause of any significant trouble or expense.
Yours very truly,”
1985.07.16 (Anthony
O'Connell
to Jean
O'Connell
)
"Business
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
Also
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
Pleasure
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"
1985.08.19 (Robert McCandlish to Anthony O’Connell)
"We have had no response to our letter of July 16, 1985.
Please have a resident trustee appointed as soon as possible.
Very truly yours,”
1985.08.23 (Anthony
O'Connell
to Robert McCandlish) (Copy to Jean O'Connell and Joanne Barnes)
"Thank you for your letter of August 19, 1985, requesting that a resident co-trustee be appointed.
I request that Andrew Higham be appointed as resident co-trustee. His address is:
Andrew Higham 6208 Higham Drive
Franconia, Virginia 22310
(314) 971-3129
I also request that the Trust be funded in accordance with Ms. Joanne L. Barnes letter of August 16, 1985 (attached).
I apologize for the extended time and effort this account has taken. I am optimistic that the trust will be funded soon. Again, thank you for your help.
Very truly yours, Anthony
O'Connell"
Enclosure:
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”
4
Surprise obstacle
(Bond problem)
"Bond fee- Lawyer fix so
bond pd when sold.
nominal amt now."
"Clerk 691-2224
691-4193- give
fiduciary no. 21840
(Procedure
Come in - surety bond-)
(Va resident with)
Patty Moat ot"
1986.04.25 (Edward White to Henry Mackall, copy to Jean O'Connell)
"Enclosed is the draft by Ms. Barnes of the Final Accounting.
I have taken the liberty of correcting a typographical error on the distributions to reflect 53.9006% vice 3.9006%.
I would appreciate it if you would forward this to Mr. O'Connell and clarify with him his intention to qualify on May 1st. If he does not agree or requests further delaying tactics, I feel that I have no other recourse in serving my client than to seek to have him removed as a Trustee. This matter is costing Mrs. O'Connell dearly with the delay.
Sincerely, Edward J. White
1986.05.08 (Henry Mackall to Anthony O’Connell and H.A. Higham)
"Enclosed please find a copy of my letter to Mr. White together with copy of a proposed Petition and Order in connection with the bond problem we ran into when you attempted to qualify.
5
Terminate trust
I don't understand why Edward White instructs the family to terminate the trust early. I don't understand why Joanne Barnes, who is doing the accounting for the trust at this time, does not take an accountable position on this.
1992.04.22 (Edward White to Jean Nader)
"Enclosed is an agreement which should satisfy Tony as to the car. It cannot be any clearer.
Also enclosed is a preliminary analysis of the estate tax, which should be close to being accurate. I do need to check with Jo Ann Barnes as to a technical question as to whether or not any of your father's trust comes into this. I do not think it does, but there have been many changes in the law since that trust was established. I will have to ask her to bill us for that advice and any other technical tax matters I am not comfortable with. I can do most of the rest of the tax work and save the estate some money.
The executors' commission shown on the analysis is not figured on the value of the realty; however it does not include the 5% commission on the receipts of the estate in addition to the inventory.
In order to file that return and the subsequent Fiduciary Income tax return we will need an accounting from Tony from the date of his last accounting to the date of death. If he does not want to prepare it, I will not agree to any preliminary disbursal to him at all, and will seek your approval to file suit against him to compel the accounting, plus damages to the estate for his delay. Since that trust terminated on your mother's death, his final accounting is due now and not in October.
There will be no further explanations or written entreaties to him as far as I am concerned. He has the duty and he will perform it under a court order if necessary. Of course he will furnish that receipt.
The preliminary analysis contains three alternatives on Accotink at the bottom for your consideration.
In the event that we do seek a reduction in the assessment Tony will be given written notice that his prompt cooperation is necessary and that if he fails to cooperate that he is aware of the adverse consequences to the estate and is responsible for them.
As far as further steps are concerned, we have a lot to do. No gift tax returns were filed for 1989 and 1991 which will have to be done. The results of those gifts are factored in under "Unified Credit used for gifts 9,784".
The paper trail in the court and IRS is as follows:
File Estate tax by June 15, 1992
File First Accounting (16 months after qualification but can be sooner)
Ask for posting of Debts and Demands against the estate.
File Fiduciary Income tax returns for period 9/15/91-9/15/92, due January 1, 1993.
File Motion for a Show Cause why distribution should not be made. Submit Show Cause Order.
Request Executor's exoneration letter from IRS and Virginia.
Obtain closing letter from IRS and Virginia as to estate tax returns.
File 1993 Fiduciary tax returns (Sept. 1992-distribution)
File for Order allowing distribution.
Distribute estate.
File Final Accounting.
Normally distribution is withheld until the Order of Distribution is entered. As I indicated the creditors have one year to press claims against the estate. No prudent executor will distribute before that period, the entry of the Order of Distribution and the receipt of the tax closing letters.
Sincerely, Edward J. White
1992.07.27 (Estimated) (Jean Nader to Anthony O Connell)
"1. What is the status of the Fairfax County re-assessment matter?
2. Are you handling it?
3. You mentioned that you have brought to the Board's attention the fact that the appraisal did not factor in the marine clay issue. Can the appraiser amend his report to reflect a lower value so that it can be used on the estate tax return.?
5. Since the trust was supposed to terminate on Mother's death, the $2000.00 for the appraisal should be paid to the beneficiaries, not to the trust. The checks from Sheila and me can then be paid back to you.
6. Please send a copy of the appraiser's bill and his notation that it has been paid so that the estate may claim the payment for the appraisal as a deduction.
[Handwritten below]
Dear Tony -
I hope all is well with you -
H1 and I are going to visit Jen and Mike in N.C. this week -
I m looking forward to a good time.
Will you answer the enclosed questions? Either to Ed White or me -
Love Jean"
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