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Virginia General Assembly Changes Laws Relating to Legal Malpractice Claims in Estate Planning

In the past several years, the Virginia Supreme Court has made several important clarifications regarding standing to contest certain transactions related to estates.  This included the decision of Platt v. Griffith, 299 Va. 690 (2021), which held that only an estate’s personal representative (i.e. an executor or administrator of an estate) could litigate on behalf of the estate, even when the personal representative is also a beneficiary of the estate.  This set up an often-confusing situation where a personal representative has an obligation to investigate whether they must challenge a transaction pursuant to their duties to administer the estate, even if undoing the transaction would result in the personal representative losing some of their inheritance and potentially facing legal liability.

Subsequent decisions, such as Phillips v. Rohrbaugh 300 Va. 289 (2021), helped clarify how other beneficiaries can obtain standing to challenge those transactions even though they are not the personal representative of the estate, including by demanding that the personal representative bring suit prior to litigating or asserting that the personal representative committed fraud of some sort relating to the transaction.

Now, the Virginia General Assembly has altered the law to further limit who can bring suit related to a type of claim in estate litigation: legal malpractice claims.  In the 2025 legislative session, the General Assembly passed SB1115, which specifically provided that “an attorney does not owe a legal duty to any person other than the client in any engagement for the purpose of the client's estate planning.”  Virginia Code § 64.2-520.1.  This means that estate planning attorneys’ legal duty is to the client only and not to any beneficiaries of the estate.  Thus, only the client (while the client is alive) or the client’s estate (after the client has passed) has standing to sue an estate planning attorney for legal malpractice. 

The new law provides an exception whereby a client can enter into an agreement with the estate planning attorney to confer a benefit upon a third party.  Such an agreement must be in writing, signed by the attorney and the client, and specifically reference the new code section.  Unless these specific rules are followed, no third-party beneficiary will have standing to sue for legal malpractice. This likely removes legal malpractice claims from the Platt and Rohrbaugh frameworks, which means that third-party beneficiaries of the estate cannot get around the standing issue by demanding that the personal representative bring the malpractice claim or by asserting fraud.  

However, third-party beneficiaries may still be able to bring a claim directly against the personal representative should the personal representative refuse to bring a malpractice claim against the estate planning attorney.  Thus, the estate planning attorney would not be a party to the action, but instead the beneficiary would bring a claim against the personal representative for breach of duties relating to administering the estate.
 
This new law is an important protection for estate planning attorneys, but also must be a consideration for beneficiaries who may have claims relating to improper legal transactions during the life of the testator.  It will be important for personal representatives and third-party beneficiaries alike to review the law and consult with legal counsel before making decisions about potential legal malpractice claims.