Disclaimer: This article is for educational purposes only and does not constitute legal advice or establish an attorney-client relationship.
Detailed Answer: Appealing a Personal Representative’s Removal in Virginia
Statutory Basis
Under Virginia Code §64.2-151 (Va. Code §64.2-151), a circuit court may remove a personal representative for mismanagement or misconduct. Any person aggrieved by that decree may appeal only to the Supreme Court of Virginia under Virginia Code §64.2-748 (Va. Code §64.2-748).
Timeline and Deadlines
You must file a petition for appeal with the clerk of the circuit court that issued the removal order within 30 days of the date the order was entered. After docketing, you have 90 days to prepare and file the record on appeal, including transcripts, exhibits, and your assignments of error.
Steps to Appeal
- Obtain a certified copy of the removal order from the circuit court clerk.
- File a petition for appeal in the circuit court within 30 days, paying the required filing fee.
- Receive a docket number from the Supreme Court of Virginia.
- Compile the record on appeal—court transcript, exhibits, and pleadings—within 90 days of docketing.
- Prepare and file assignments of error and an appellate brief outlining legal arguments.
- Participate in oral argument before the Supreme Court if requested.
Standards of Review
The Supreme Court reviews questions of law de novo (fresh review). Factual findings will stand unless they are plainly wrong or without supporting evidence.
Alternatives and Considerations
If you aim to challenge specific conduct before removal, consider a surcharge proceeding or a motion to stay the removal order pending appeal. In limited circumstances—such as a related civil action seeking monetary relief—you may also appeal to the Court of Appeals of Virginia under Va. Code §8.01-670.1 (Va. Code §8.01-670.1), though most pure probate matters bypass the Court of Appeals.
Helpful Hints
- Act promptly: missing the 30-day deadline generally waives your right to appeal.
- Ensure the record is complete: omitting transcripts or exhibits can lead to dismissal.
- Review Supreme Court Rules, especially Rule 5:2, for record assembly requirements.
- Consider a motion to stay the removal order if the representative’s duties are critical to estate administration.
- Consult an appellate attorney for drafting precise assignments of error and briefs.