Removal of a Personal Representative in a Virginia estate administration or probate.
In Virginia, the person whose duty it is to administer the estate of a deceased person is called the personal representative. Their job is to settle the financial affairs and distribute the assets of the decedent to the beneficiaries of a will or family members under the Virginia’s intestacy scheme.
The personal representative must first qualify before the court. Sometimes a personal representative is qualified by the court and they do not have the best intentions regarding the estate. In other cases, a personal representative is simply incapable of handling their duties. The Virginia Code states that a personal representative may be removed for incapacity, misconduct or if it would be improper for them to continue to serve. Here, the law recognizes that every situation is unique. When any of these situations happens, someone who is interested in the estate must assert their rights and seek the removal of the personal representative.
What law controls the actions of a personal representative?
When the testator died leaving a will, the powers of the personal representative may be outlined in the will. The personal representative also has powers which are granted by law. Sometimes the actions of the personal representative enter a sort of legal gray area. In these instances, an attorney must be consulted to determine whether the personal representative has overstepped their authority or is breaching their fiduciary duties. Litigation involving a personal representative is often very fact specific.
How is a personal representative removed?
In order for a personal representative to be removed, the commissioner of accounts must be aware of the incapacity or misconduct. I often advise clients that the court or the Commissioner is not likely to take action against the personal representative unless they are notified of the misconduct.
Are there any alternatives which are less drastic than the removal of a personal representative?
Under the Virginia code, the commissioner of accounts may determine that the personal representative needs to post an additional bond. This is a less drastic approach than outright removal. However, there may be instances where this is simply not a viable option.
Speak to an attorney who is concerned with the dynamics of your family, values and particular estate legal needs.
Many times clients will approach me with concerns that a personal representative should be removed. In those instances, I find that is very useful to listen to the client and determine what is most important to them personally. In some instances, the client has serious concerns that the personal representative is acting improperly. Other times, the client simply wants the personal representative to recognize their position. However, in every instance, I am concerned with protecting the needs of my client and learning more about what they value most. I want your values and concerns to play an integral part in any legal plan of action.
Ryan C. Young | Estate Disputes & Litigation | Richmond, Virginia Attorney
