How to Get the Heir Removed as an Executor in Virginia

by David Carnes
Removal of an estate executor is authorized by the Virginia Code.

Removal of an estate executor is authorized by the Virginia Code.

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An executor is the person responsible for administering the estate of a deceased person during the probate process. Normally, the probate court appoints the person named in the will as executor. Often this person is also named as a beneficiary in the will and an heir to estate property. If you suspect the executor is abusing his authority or you wish to have him removed for another reason, Virginia law allows you to petition for his removal.

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Notification

To file a petition for removal of an executor, Virginia law requires you notify all "interested parties," in writing, of the petition. Interested parties include the executor himself, beneficiaries of the will and creditors of the estate. You don't have to notify the executor if he is deceased or has already resigned. If the executor is a corporation, notification is unnecessary if the corporation is bankrupt or its corporate charter has been revoked. If an interested party is a minor, you must arrange for a representative, known as a guardian ad litem, to be appointed to represent his interests in court and notify his guardian ad litem, in writing, of the petition.

Petition for Removal

A petition for removal of an executor must state "good cause" for removal and ask the court to appoint a substitute executor. Good cause may include death, resignation, bankruptcy, revocation of charter, fraud, self-dealing, gross negligence, or failure to perform his duties. It must be drafted in the same format as other court motions and include the name of the case and case number at the top of the document. The petition must be filed with the probate court administering the estate, which is typically the court with jurisdiction over most of the estate property. There is no filing fee. The court will schedule a hearing on the matter at which time, you, the executor, and all interested parties, including the guardian ad litem, can call witnesses and present evidence in support of, or opposition to, the petition.

Alternative: Show Cause Proceedings

An executor must file an inventory of estate assets with the probate court and file periodic reports detailing his acts with respect to estate assets. If he fails to do so, the Commissioner of Accounts may notify the executor in writing that he must file these documents with the probate court within 30 days of issuance of the notification letter. If he fails to do so, the court will issue a "show cause" summons requiring the executor to appear in court and explain why he should not be held in contempt of court. At this point, the court has several sanctions available to it, including removal of the executor. Accordingly, an alternative to filing a motion for removal is to prompt the Commissioner of Accounts to act instead.

Appointment of Successor

Virginia law requires a successor executor named in the will to be appointed by the court to replace a removed executor, provided the successor executor is qualified. To qualify, he must consent to the appointment, be a legal adult and mentally competent. Otherwise, the court will appoint an estate administrator, with priority given to a beneficiary, or someone nominated by a beneficiary.