New California Case – Damages Recoverable Against an Estate Executor for Failure to Timely Distribute Assets Following an Order of Distribution

New California Case – Damages Recoverable Against an Estate Executor for Failure to Timely Distribute Assets Following an Order of Distribution

By David W. Tate

Estate of Roger Kampen (California Court of Appeal, First Appellate District, Case Nos. A129849 and A130313, November 14, 2011, Pub. Order December 9, 2011) [enhanced version available to lexis.com subscribers / unenhanced version available from lexisONE Free Case Law].

The Court's decision in Kampen is lengthy. It is a case that should be read if you are involved in issues relating to damages that can be recovered against an executor for breach of fiduciary duty, particularly in the context of damages that might be recoverable against an estate executor for significant delay in the distribution of estate assets following an order of distribution. The trial court did award damages against the executor including loss of compensation and the loss of value to the estate caused by the executor's delay. However, the beneficiary appealed, contesting the trial Court's manner of calculating damages, and also the trial Court's denial of interest during the time of delay following the order of distribution. The beneficiary argued that the damages should have been larger and should have included some manner of calculation relating to the beneficiary's lost claimed lost opportunity costs.

In summary, on appeal the Court affirmed the trial court's manner of calculating damage caused by the executor's delay, and held that interest did not accrue on the value of the estate following the order of distribution. The decision discusses many sub-issues pertaining to the calculation of damages in the context of an estate. For example, the Court held that an order of distribution is a final judgment that is in rem in nature, but it is not a money judgment; speculative damages are not recoverable; and the beneficiary of the estate "is not entitled to interest it could have earned on the cash in the estates. An executor is similar to a trustee in many respects but, unlike a strict trustee, an executor has no statutory duty to invest money belonging to the estate." The Court also upheld the trial court's partial holding against the beneficiary for laches relating to the beneficiary's delay in enforcing its rights.

Dave Tate, Esq. (California)
Trust, estate, conservatorship and elder litigation and difficult administrations; hourly, referral/fee, contract, co-counsel, split hourly/contingency, and contingency arrangements considered.

DAVID W. TATE, ESQ.

E-mail: tateatty@yahoo.com; Website: http://davidtate.us

Blogs: http://davidtate.wordpress.com; http://californiaestatetrust.wordpress.com

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