Executor-Removal of an Executor

Removal of Executor

Two basic statutory provisions exist for the summary removal of the personal representative in Virginia.

By he Commissioner of Accounts, at any time an inventory or annual statement of accounts has been laid before him, and upon the application of any interested party, may investigate whether such fiduciary should be removed by reason of incapacity, misconduct, removal of the fiduciary from the Commonwealth, or any other reason. The Commissioner’s findings shall be reported to the court. Va. Code § 26-2.

By he court may remove a fiduciary based upon the Commissioner’s report or upon evidence adduced before it by any interested party. Va. Code § 26-3.

In either case, reasonable notice to the fiduciary is required. The court is granted large discretion in its power to remove any fiduciary.

Appellate courts will not interfere except in a case where manifest injustice has been done or the court has abused its discretion. See Nickels v. Horsley, 126 Va. 54, 100 S.E. 831 (1919); Clark v. Grasty, 210 Va. 33, 168 S.E.2d 2

Friction Between Fiduciary and Beneficiary

The modern view and the Virginia Supreme Court opinions lean toward the rule that friction between the fiduciary and the beneficiary is not sufficient grounds for removal if no other beneficial end will be achieved. See Clark, supra. But cf., Nickels, supra, where the court held the mere possibility of a conflict might be sufficient for removal. 

But in Ward v. Little, VLW 094-8-053, Richmond Circuit Court, the circuit court held that proper grounds for removal for good cause under the court’s general equitable powers, as fortified by Va. Code § 26-48, included the existence of hostility and friction between the trustee and beneficiaries, causing interference with the proper administration of the trust. There seems to be a growing basis to attack the modern view, but each decision must be viewed on a case-by-case basis.


Va. Code § 26-46 allows a personal representative or other fiduciary to resign after his accounts have been stated and settled. 


Upon motion of any interested party when a trustee (or executor or administrator) dies; is mentally or physically incapable of performing; moves outside of Virginia; declines to accept the trust; resigns; if a corporation, goes bankrupt or loses is charter; or for any good cause shown the Circuit Court having jurisdiction over the will or trust may appoint a successor. Va. Code § 26-48. 

The maker of a trust may grant the beneficiaries the right to appoint a successor trustee upon the happening of any of the foregoing events. Va. Code § 26-49. 

In addition to these events, if the instrument provides, replacement of the trustee can be at the discretion of the beneficiaries for any reason.