The right to collect fees from the surveyor-partitioner according to a recent ruling

The right to collect fees from the partitioner according to a recent ruling If a partitioner is involved in the inheritance, the heirs must pay their fees. What happens if one of them refuses to pay? This is what a recent ruling by the Provincial Court of Asturias has analysed. In this article, we will look at what a partitioner does, how they differ from an executor, and what happened in the specific case in Asturias.

How does a partitioner differ from an executor?

Various professionals may be involved in inheritance proceedings, performing a range of tasks. One of the most important figures is the partitioner, who plays a key role in the inheritance process: doing everything necessary to divide and distribute the assets of the estate among the heirs.

The partitioner differs from the executor in that the latter has a different task, which is to ensure that the will is carried out and to preserve and safeguard the assets of the estate. In other words, the essential role of the partitioner is to distribute the estate, while that of the executor is to carry out the wishes of the testator.

What are the duties of the partitioner?

The specific duties of the partitioner are as follows:

• The liquidation of the joint property if the deceased was married to a surviving spouse. This defines what belongs to the deceased and what belongs to the spouse.
• Defining which assets form part of the inheritance and establishing their value. It is in establishing the value that there are usually the most conflicts between the heirs, which is why the intervention of an objective figure is recommended.
• Distributing the assets among the heirs. To do this, they must respect the contents of the will and respect the legitimate claims.

Who appoints the partitioner?

There are several possible scenarios:

• The appointment can be made in the will by the testator himself. In this case, the partitioner is referred to as a testamentary partitioner.
• If no partitioner has been appointed in the will and the heirs cannot agree on the distribution and valuation of the assets, a partitioner may be appointed by the judge. This is known as a judicial partitioner.
• If the heirs reach a unanimous agreement, they may also appoint a partitioner. This may be a solution to avoid going to court. In this case, we refer to a dative partitioner.

Next, we will look at the case that was analysed and judged by the courts of first instance of Asturias and by the Provincial Court.

A complex inheritance with conflict between heirs: this is how the Asturias case began

The inheritance division proceedings began in 2019 in a magistrate's court in Cangas de Narcea. There was no agreement between the heirs, and the judge appointed a partitioner to draw up the partition deed for the distribution of the assets.

In this case, the partitioner had a very complex technical task for several reasons:

• First, he had to liquidate the joint property, because there was a surviving spouse and the assets of the inheritance had to be separated from the assets of that spouse.
• He then had to draw up the partition deed with the added difficulty that there were about 15 properties and previous financial relationships between the heirs.
• In addition, there was the added difficulty of conflicts between the heirs, which are quite common when there is a large estate.

An heir refused to pay the partitioner

The work was completed and the partitioner sent the heirs an invoice for €6,610.13 including VAT, but one of the heirs refused to pay.

The partitioner claimed payment and the court ruled in his favour because it considered that the invoice was entirely proportionate to the work carried out and in line with the fee criteria of the bar associations (which are not binding but serve as a guide).

On the other hand, the costs of the claim process were imposed on the heir who refused to pay. The latter decided to appeal, arguing that the contested judgment was inconsistent because it was based on grounds that did not appear in the partitioner's claim. Furthermore, he argued that the debt did not exceed €2,307.14 because he had already paid part of it.

The Provincial Court dismissed the heir's appeal. In other words, he was finally ordered to pay the professional who had distributed the inheritance.

How are the fees of the accountant-partitioner set according to the judges?

An important aspect is that bar associations have rules on fees for the different services that a legal professional can provide. These rules are not binding, so lawyers are not obliged to charge what the rules say, but the courts consider them to be a reference, and this was the case in the proceedings we have analysed.

In general, fees are usually calculated by applying a percentage to the value of the estate. This percentage usually ranges from 10 to 30%.

To determine the fees for this professional, judges usually consider several factors:

• Fee criteria of the bar associations.
• Elements of the inheritance itself and the work involved:
  o It is a large estate of high value.
  o The time devoted to the work is considerable.
  o Specific technical knowledge is required.
  o Complex negotiations with the heirs are necessary because they cannot reach an agreement.

As we have seen, they play an important role in avoiding deadlocks and problems between heirs and are entitled to charge for the work they do. The accountant-partitioner plays an essential role in the distribution of assets in complex inheritances, ensuring that legitimate claims are respected and resolving conflicts between heirs in an objective and fair manner.

If you need assistance because you have been named an heir or are experiencing issues with an inheritance, please contact us. Our team has been advising individuals with similar issues to yours for over 25 years, offering empathy and practical solutions.