Brett C. Herbert

Partner
blank image Brett C. Herbert

Brett C. Herbert

Partner
Richmond T: 804.977.1242 F: 804.977.1280
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Brett C. Herbert

Brett C. Herbert

PARTNER
bherbert@whitefordlaw.com
RICHMOND
T: 804.977.1242
F: 804.977.1280
Biography
BIOGRAPHY
Mr. Herbert is a litigator who focuses his practice on estate and trust litigation, general commercial litigation, real estate litigation and community association representation.

Mr. Herbert advises community associations (homeowners associations and condominium associations) on their general legal matters, as well as in litigation matters involving covenant enforcement actions and collections actions.

In his estate litigation practice, he represents clients involved in bringing challenges to (and defending against challenges to) wills and trusts. He also handles will and trust interpretation disputes, as well as bringing claims against (and defending claims against) executors and trustees for breach of fiduciary duties. He also handles guardianship and conservatorship proceedings, including routine uncontested matters, as well as contested matters.

Mr. Herbert represents businesses in an array of contract disputes, as well as disputes involving claims for fraud, defamation, conspiracy, and tortious interference. He also represents businesses in premises liability and other tort claims.

His real estate litigation practice consists of litigating eviction claims, title disputes, and community association disputes.
 

Recognitions

  • Best Lawyers in America® Ones to Watch distinction in Commercial Litigation, 2021-2024, Real Estate Law, 2023-2024, Trusts and Estates, 2022-2024
  • Selected as a “Rising Star” in Virginia Super Lawyers, 2023
  • Recognized as a “Top Lawyer” by Coastal Virginia Magazine, 2020-2025
  • Virginia Business Magazine, Construction "Legal Elite" (2024-2025)
  • Virginia Business Magazine, Young Lawyer"Legal Elite" (2016)
 

Memberships & Activities

  • Virginia State Bar; Real Property Section, Trust and Estates Section
  • Virginia Association of Defense Attorneys: former Chair and former Vice-Chair of the Corporate & Commercial Litigation Section; former Member of the Legislative Committee
  • Williamsburg Bar Association
  • Richmond Bar Association
  • Community Associations Institute
    • Central Virginia Chapter
      • Member of the Membership Committee
    • Southeastern Virginia Chapter
INSIGHTS

Co-Presenter, EV Charging in Virginia Common Interest Communities, for Southwestern Virginia Chapter-CAI, on September 26, 2025

Panelist at Virginia Association of Defense Attorneys (VADA) 2022 Spring Sections Seminar – Corporate & Commercial Litigation Section

Author, Deeper Into The Thicket: Navigating The Increasingly Complex And Curious World Of Virginia General District Court Civil Litigation, The Journal of Civil Litigation, Vol. XXX, No. 3, Fall 2018

Co-Author, USLAW Retail Compendium of Law: Virginia, Retail, Restaurant, and Hospitality: Guide to Virginia Premises Liability, 2017 & 2018

Co-Author, USLAW Commonwealth of Virginia Compendium of Law, 2017

ARTICLES

January 26, 2026

Using Natural Resources in a Life Estate: What Virginia Families Should Know

When a loved one leaves you a life estate in land that has natural resources (like timber, minerals, or natural gas), you receive the right to use and enjoy the property during your lifetime. But that right comes with limits designed to protect the “remainder” owners, the people who will own the property after your life estate ends. In Virginia, those limits matter a lot when it comes to cutting timber, mining coal, or using other natural resources on the land.
January 7, 2026

Client Alert: Virginia Court of Appeals Rules on Entitlement to Elective Share for Separated Spouses

  • The Virginia Court of Appeals recently ruled, in the case of Teel v. Teel, on a dispute involving the elective share of a surviving spouse and allegations that such spouse abandoned the marriage.
  • This ruling provides helpful guidance for how a Virginia court would resolve such a dispute.
  • Under the Court of Appeals ruling, Sue Anderson Teel lost her right to a share of her late husband Gene “Bull” Atkins Teel’s estate due to intentional abandonment, pursuant to Virginia Code § 64.2-308.14(E).
  • Despite being married since 1988 and never divorcing, the surviving spouse was found to have “willfully deserted” Bull, who left his estate to his brother.
  • Regarding the elective share, under Virginia Code § 64.2-308.3(A), a surviving spouse can claim 50% of the marital property portion of the augmented estate (subject to the limitations and conditions contained in the Virginia Code), but this right is forfeited if the surviving spouse willfully leaves the marriage.
  • The Virginia Court of Appeals employed a 2018 Supreme Court framework to assess the issue of abandonment, focusing on the surviving spouse's actions and intent.
  • In this case, the evidence showed that the surviving spouse moved out, had minimal contact and engaged in a new relationship, indicating her intent to end the marriage.
  • The case highlights the importance of documenting circumstances related to abandonment in estate planning.
November 25, 2025

How Do Wills Affect Right of Survivorship Property in Virginia

Owning property with the right of survivorship can sometimes create conflicts with the terms of a person’s will.  This can lead to confusion, unintended outcomes, and even disputes.  Disputes about right of survivorship retitlings of property (for example, real property or other property including bank accounts) are fairly common in estate dispute matters.
October 8, 2025

Discovery in Virginia Circuit Court Litigation: An Overview

In Virginia, once a lawsuit is filed, the door is open for the litigants (parties to a lawsuit) to engage in “discovery”.  As a general matter, discovery is the set of formal processes whereby the parties can obtain information and documentation from each other and third parties in order to investigate their claims and defenses and prepare their cases for trial.
October 7, 2025

Client Alert: Virginia Legislative Updates for Trust and Estate Litigation: 2025

The Virginia General Assembly passed several laws that affect trust and estate litigation in Virginia in 2025. They include more protections for estate planners, simplification of transfer-on-death deed revocation under certain circumstances, and changes in multiple financial figures in several statutes. These are important updates to note for trustees, executors, estate administrators, attorneys, and beneficiaries.  
August 5, 2025

The Fiduciary Duties of an Executor of An Estate in Virginia

Executors and administrators of estates in Virginia must swear an oath before the probate clerk that they will “faithfully perform the duties of [their] office to the best of [their] judgment.”  These duties are called “fiduciary” duties and have been established by both the General Assembly as well as the Courts of Virginia.
August 1, 2025

Filing a petition for Guardianship or Conservator in Virginia

When loved ones become incapacitated and have no estate planning documents in place appointing a guardian or conservator (or when replacement of a current guardian or conservator is necessary), Virginia law allows the filing of a petition with the court to appoint/replace one.