FAQ: Removing an Executor (Personal Representative) under Virginia Law

Quick answer: In Virginia, a court can remove a personal representative (commonly called an executor when named in a will) if the representative is unfit, refuses or neglects to perform duties, wastes estate assets, misapplies funds, fails to give required accounts, becomes incapacitated, is convicted of certain crimes, or otherwise fails to follow the court’s directions or the law. Removal requires filing a petition in the circuit court that is handling the estate, notice to interested parties, and a hearing where the court decides whether removal is appropriate and who should replace the representative.

Detailed answer — what removal means, grounds, and the court process

Terminology: In Virginia the person who administers a decedent’s estate is a personal representative. If appointed by a will, people often use the word “executor,” but the legal duties are governed by Virginia’s statutes for wills, trusts, and fiduciaries (Title 64.2 of the Code of Virginia). See the Virginia Code, Title 64.2: Wills, Trusts, and Fiduciaries: https://law.lis.virginia.gov/vacode/title64.2/.

Common legal grounds for removal

• Failure to perform duties: The personal representative refuses or neglects to inventory assets, notify creditors, file required pleadings, or otherwise carry out statutory duties.
• Misconduct or fraud: Misappropriation of estate funds, taking estate property for personal use, falsifying records, or intentionally deceiving beneficiaries or the court.
• Waste or gross mismanagement: Permitting estate property to be wasted, failing to insure or maintain assets, or making reckless investments that reduce estate value.
• Conflict of interest or incapacity: A serious conflict (for example, self-dealing without court approval) or physical/mental incapacity that prevents competent administration.
• Criminal conviction: Conviction of a felony or an offense involving dishonesty may justify removal.
• Failure to give account or post bond: Refusal to render required accounts to the court or the beneficiaries or failure to comply with a court order to post a bond when required.
• Unfitness or incompetence: The court can remove a personal representative it finds unfit or incompetent to handle estate affairs.

The court process to remove a personal representative

1. Who files: An interested person—typically a beneficiary, heir, creditor, or co-personal representative—files a petition in the circuit court handling the estate.
2. Notice: The court requires notice to the personal representative and to interested parties so they can respond.
3. Interim relief: The petitioner can ask the court for temporary measures—such as suspending the representative’s powers, appointing a temporary administrator, or ordering an accounting—while the dispute is resolved.
4. Hearing and evidence: At the hearing the court reviews evidence: accountings, bank records, appraisals, correspondence, witness testimony, and any prior court orders.
5. Remedies the court can impose: The court may remove the representative and appoint a successor or a temporary administrator; it may order restitution (surcharge) for misused funds, require bond, hold the representative in contempt for violating court orders, or impose other equitable remedies.

Where in the law to look

Virginia’s rules governing wills, fiduciaries, and estate administration are in Title 64.2 of the Code of Virginia. For the specific rules on administration, accounting, and court powers over fiduciaries, consult the Code and local circuit court procedures: Virginia Code – Title 64.2. For practical court information about probate and circuit courts, see the Virginia Judicial System: https://www.vacourts.gov/courts/circuit.html.

Practical, step-by-step guidance if you think removal is necessary

• Gather evidence: bank statements, canceled checks, communications, appraisal and inventory documents, and any court filings showing the personal representative’s conduct.
• Review the estate docket: Check the case file at the circuit court clerk’s office to see what the representative has filed (inventories, accountings, bond).
• Request an accounting: Ask the court to order the personal representative to file a formal accounting if one has not been provided.
• File a petition: If problems persist, an interested person files a petition asking the court to remove or suspend the personal representative and to appoint someone else or a temporary administrator.
• Consider interim relief: Seek a temporary restraining order or suspension to prevent further dissipation of assets while the dispute proceeds.
• Be prepared for costs and timing: Litigation takes time and may increase legal fees and delay distribution; courts balance the harm to the estate and beneficiaries when deciding removal petitions.

What evidence helps persuade a court?

Clear, objective records are strongest. Useful evidence includes bank and brokerage statements showing withdrawals or transfers; receipts showing misuse of funds; appraisals proving loss of estate value; correspondence showing neglect or bad faith; and prior court orders the representative ignored. Sworn testimony from accountants, appraisers, or witnesses who observed misconduct also helps.

Alternatives to removal

• Negotiate: Beneficiaries sometimes resolve disputes by negotiating corrective actions (repayment, revised inventories, or professional oversight) without court removal.
• Request court supervision: Ask the court to impose stricter reporting, require bond, or appoint a co-administrator or special fiduciary to oversee specific actions.
• Settlement: A written settlement agreement approved by the court can avoid protracted litigation.

Helpful hints

• Act quickly but calmly: Delay can allow further dissipation of estate assets. Still, gather solid evidence before filing.
• Document everything: Keep copies of communications, bank records, appraisals, receipts, and any steps you take to resolve the issue informally.
• Use the circuit court clerk: The clerk’s office can confirm where the estate files are and how to access the case docket and documents.
• Consider mediation: Some estate disputes resolve through mediation, which saves time and cost compared to a full removal hearing.
• Understand court discretion: Virginia judges have broad equitable powers; removal is fact-specific and depends on what the court finds fair and necessary to protect the estate and beneficiaries.
• Seek professional help: Speak with an attorney experienced in Virginia probate law to evaluate the strength of your concerns and the best procedural steps.

Disclaimer: This article explains general principles of Virginia law and is for informational purposes only. It is not legal advice and does not create an attorney-client relationship. For advice specific to your situation, consult a licensed Virginia attorney.