Short answer. If the administrator has retained enough estate funds and it is equitable and consistent with the testator's intent, the administrator may pay the partition expenses out of the estate. Otherwise, the heirs pay in proportion to their shares, as apportioned and allowed by the court and enforceable by execution.
What the law says
If at the time of the distribution the executor or administrator has retained sufficient effects in his hands which may lawfully be applied for the expenses of partition of the properties distributed, such expenses of partition may be paid by such executor or administrator when it appears equitable to the court and not inconsistent with the intention of the testator; otherwise, they shall be paid by the parties in proportion to their respective shares or interest in the premises, and the apportionment shall be settled and allowed by the court, and, if any person interested in the partition does not pay his proportion or share, the court may issue an execution in the name of the executor or administrator against the party not paying for the sum assessed.
Rule 90, Section 3 — By whom expenses of partition paid. Read the full provision →
Two possible payers for the same expense
Dividing an estate's various properties among the heirs costs money, and the rule anticipates two different ways that cost can be covered depending on what funds are available and what is fair under the circumstances, rather than fixing a single rigid answer for every estate regardless of its own particular situation. Which of the two ultimately applies in a given case depends on the practical facts at the exact moment of distribution, not on a preference either the administrator or the heirs get to simply choose for themselves at will.
When the administrator pays
Where the executor or administrator has, at the time of distribution, retained sufficient effects that may lawfully be applied to partition expenses, those expenses may then be paid by the administrator directly, but only where it appears equitable to the court and is not inconsistent with the testator's own intention as expressed in the will. Both conditions matter: sufficiency of available funds alone is not enough, the court must also independently find that using estate funds this way is fair and does not run against what the testator actually wanted.
When the heirs pay, and how it's enforced
Otherwise, the partition expenses fall on the parties themselves, in proportion to their respective shares or interest in the properties, with the exact apportionment settled and formally allowed by the court. If any interested person does not pay their assessed share, the court may issue an execution against that non-paying party for the sum assessed. This enforcement mechanism means the obligation is not merely advisory; a court order backed by execution gives the other heirs a genuinely real way to collect from someone who simply refuses to pay their assessed share.
Related provisions
- Rule 90, Section 3 — By whom expenses of partition paid
- Rule 90, Section 2 — Questions as to advancement to be determined