Motion to Remove Executor

Motions for removal under Va. Code § 26-48 require reasonable notice to all interested parties, other than the person making the motion, and the appointment of a guardian ad litem to protect the interests of any minors, insane parties, or convicts having an interest. Va. Code § 26-50. Substantial compliance to these provisions is necessary for a valid decree of removal. Abraham v. Ball, 122 Va. 197, 94 S.E. 799 (1918). No notice is required however for a trustee who resigns, moves out of state, refuses to accept the appointment or is dead. No notice required either to a bankrupt corporate trustee or a corporate trustee whose charter is revoked. Va. Code § 26-50.

The Court may, upon the petition of any successor fiduciary, direct any securities standing in the name of the removed or resigning fiduciary to be transferred to the successor or to a receiver. Va. Code § 25-56.

Procedure for removal. In order to remove a fiduciary, a petition must be filed in the Circuit Court where the estate is being administered. The action is filed in equity, or on the chancery side of the court. 

The petition must name the personal representative as a party, and must be served upon the personal representative in the manner provided by Va. Code § 8.01-296. All other beneficiaries of the will, or other interested parties should also be named in the petition and served as provided by law. 

Appointment of successor fiduciary. Upon removal of a fiduciary named in a will, if the will designates a successor, that person shall be appointed upon application to the court. If the named successor refuses or is otherwise unable to serve, the court or clerk may grant administration to a person who is named as a residual or substantial legatee under the will, or such person may designate an administrator to be appointed. If there is no application for appointment within thirty days by the residual or substantial legatee, administration may be granted to a person who would have been entitled to appointment had there been no will. Va. Code § 64.1-118 sets forth the order of preference in the event of intestacy. In all such cases the court or clerk must be satisfied that the person applying for appointment is suitable and competent to perform the duties of office. Va. Code § 64.1-116. It is not clear whether the provisions of Va. Code § 64.1-122.2 would require additional notice upon qualification of a successor or replacement personal representative.