Common Scenarios of Breach of Fiduciary Duty by an Executor or Administrator of an Estate in Virginia
Date: June 2, 2026
Common Grounds for Breach of Fiduciary Duty
An executor or administrator is a fiduciary charged with settling a decedent’s estate. When they are appointed, they take an oath to “faithfully perform the duties of his office to the best of his judgment.” Virginia Code Section 64.2-501. Core responsibilities typically include identifying and safeguarding assets, paying valid debts and taxes, and distributing the remainder to beneficiaries or heirs according to the will or governing law. They are charged to manage the estate “well and truly.” Virginia Code Section 64.2-514. Their fiduciary duties include acting impartially (i.e. loyally and solely in the interests of the estate and beneficiaries); following governing instruments and Virginia law; and acting in good faith. There are many ways that executors and administrators can and do violate these duties; the following are several common examples:
- Mismanagement of Estate Assets
Executors and administrators are charged with managing the assets of the estate. While some estates are simple with few assets, others are complicated, with many types of assets, financial accounts, personal property, and real property. Executors and administrators must take care to correctly identify assets and handle them prudently during the course of probate. Examples of missteps executors and administrators make include failing to secure and inventory assets, allowing property to fall into disrepair, imprudent investments, ignoring insurance or tax obligations, or commingling estate funds with personal funds.
- Failure to Follow the Will’s Instructions or Applicable Law
Executors must adhere to the wishes of the decedent as set forth in the last will and testament, and administrators of intestate estates (i.e. those without a will) must strictly comply with Virginia law when distributing estate assets. While some wills are simple, others include many instructions for specific bequests (e.g. gifts to particular people or entities), distributing real and personal property, handling debts, and other estate administration tasks. Likewise, Virginia laws regarding intestacy can get complicated with complex family trees and descendant lineages. Disregarding specific bequests, changing distribution priorities without authority, or distributing assets contrary to statutory requirements can constitute breach.
- Conflicts of Interest and Self-Dealing
Executors and administrators of estates are charged not to advantage themselves over the beneficiaries. This can be especially challenging when the executor or administrator is also one of multiple beneficiaries of the estate. The executor/administrator must separate their interest as a beneficiary of the estate from their role as fiduciary. Engaging in transactions that benefit the fiduciary at the estate’s expense, such as selling estate property to themselves or a related party at below market value, making distributions to themselves before or without making distributions to other beneficiaries, or steering business opportunities away from the estate and toward themselves, can be considered a violation of the duty of loyalty.
- Lack of Communication and Failure to Account
Executors and administrators are required by Virginia law to provide certain information to the local Commissioner of Accounts as well as the beneficiaries. A will may also include certain reporting duties. Reporting on even simple estates can be a challenging process, and sometimes, executors and administrators avoid reporting to hide their own mishandling of the estate or self-dealing. Executors and administrators may face claims for breach of fiduciary duty if they refuse to provide reasonable information, ignore beneficiary inquiries, or fail to deliver required accountings.
- Failure to Pursue Claims or Pay Debts of the Estate
The executor/administrator is charged to pay the debts of the estate and to pursue claims of the estate. Debts may include funeral expenses, final medical bills, credit card bills, or other debts of the decedent. The estate may have claims for pending personal injury claims of the decedent, income owed to the decedent, or any other money that the decedent had a right to before they died. Unreasonable delays in administering the estate, missing key deadlines, or allowing claims and penalties to accrue through inaction may constitute a breach of the executor/administrator’s fiduciary duty.
- Improper Payment of Claims or Expenses
Paying barred or unverified claims, overpaying expenses, or distributing assets before satisfying taxes and higher-priority debts can expose the estate and the fiduciary.
Legal Implications and Potential Consequences
Executors/administrators that violate their fiduciary duty may be subject to harsh consequences for doing so. This may include:- Removal: Courts may remove a fiduciary and appoint a successor.
- Surcharge: A breaching fiduciary can be ordered to repay losses, lost profits, or improper gains to the estate.
- Disgorgement and Forfeiture of Fees: Compensation may be reduced or forfeited, and profits from self-dealing can be disgorged (i.e. ordered to be returned).
- Equitable Relief: Courts may rescind improper transactions, impose constructive trusts, or enjoin (i.e. prohibit) further misconduct.
- Personal Liability: Fiduciaries may face personal liability for damages resulting from breach, including interest, attorney’s fees, and costs.
- Sanctions and Contempt: Failure to comply with court orders can result in sanctions.
Frequently Asked Questions about Executor and Administrator Breaches of Fiduciary Duty in Virginia
Can an executor be removed in Virginia for misconduct?Yes. Courts in Virginia can remove an executor or administrator who fails to perform their duties, engages in misconduct, or creates risk to the estate. A successor fiduciary may then be appointed to complete the administration properly.
How long does an executor have to settle an estate in Virginia?
There is no fixed deadline for completing estate administration, but executors are expected to act diligently and without unreasonable delay. Missing deadlines for filing inventories, accountings, tax returns, or creditor claims can constitute a breach of fiduciary duty if it harms the estate or beneficiaries.
What happens if an executor fails to provide an accounting?
Virginia executors and administrators are generally required to submit accountings to the Commissioner of Accounts and, in some cases, provide information to beneficiaries. Failure to do so may result in court intervention, removal, or other sanctions. A lack of transparency is often a red flag for potential mismanagement or breach.
What are examples of executor misconduct or self-dealing?
Examples of misconduct include:
- Selling estate property to oneself or a related party below market value
- Using estate funds for personal expenses
- Prioritizing personal distributions over other beneficiaries
- Failing to disclose conflicts of interest
These actions may violate the fiduciary’s duty of loyalty and can expose them to personal liability.
Can a beneficiary sue an executor for breach of fiduciary duty?
Yes. Beneficiaries may bring a claim against an executor or administrator who has violated their fiduciary duties. Common remedies include removal of the fiduciary, repayment of financial losses (surcharge), and forfeiture of compensation. Because these cases are fact-specific and can involve court proceedings, beneficiaries should consult an experienced Virginia fiduciary litigation attorney to evaluate their options.
Bottom Line
Fiduciary duty is a serious legal obligation. Executors and administrators who act prudently, transparently, and in strict compliance with estate planning documents and Virginia law can minimize risk. Beneficiaries who suspect misconduct should promptly consult a skilled fiduciary lawyer about available remedies and the most efficient path to protect the estate, including the process of suing for breach of fiduciary duty. Likewise, administrators/executors who are accused of (or sued for) misconduct should promptly seek legal counsel.
ABOUT OUR TEAM
Whiteford offers sophisticated, experienced counsel on estate, trust, and fiduciary dispute matters, including will contests, challenges to beneficiary designations, and pay-on-death and transfer-on-death designation disputes.When an estate dispute is on the horizon, the stakes are personal and the legal questions are complex. Whiteford’s Estates, Trusts, & Fiduciary Litigation Practice Team in Richmond, Virginia, helps executors, trustees, heirs, and beneficiaries navigate these disputes, from early warning signs through trial. Our attorneys handle claims involving undue influence, fraud, lack of testamentary capacity, breach of fiduciary duty, and contested transfers of assets, as well as, guardianship and conservatorship proceedings and will and trust interpretation.
Gregory S. Bean is a partner at Whiteford, Taylor & Preston LLP in Richmond, Virginia. Greg is a litigator and member of the Estates, Trusts, & Fiduciary Litigation Practice Team who represents clients in will contests, trust challenges, and breach of fiduciary duty claims involving executors and trustees, among other similar claims. His practice extends to will and trust interpretation, guardianship and conservatorship matters, and power of attorney disputes. Greg holds a Best Lawyers in America® distinction in Trusts and Estates. Greg can be reached at GBean@whitefordlaw.com and (804) 977-1241.
Brett C. Herbert is a partner at Whiteford, Taylor & Preston LLP in Richmond, Virginia. Brett is a litigator and member of the Estates, Trusts, & Fiduciary Litigation Practice Team who represents clients in will contests, trust challenges, and breach of fiduciary duty claims involving executors and trustees, among other similar claims. He also handles guardianship and conservatorship proceedings, including both routine and contested matters. Brett has been recognized as a Virginia Super Lawyers "Rising Star" and named Best Lawyers in America® Ones to Watch in Trusts and Estates. Brett can be reached at BHerbert@whitefordlaw.com and (804) 977-1242.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.