This article explains how someone in Delaware can try to recover surplus funds that remained after a county tax foreclosure sale of a property owned by a deceased parent. It assumes the reader has little or no legal background. This is educational information only and not legal advice.

What are “surplus funds”?

When a county sells property to satisfy unpaid property taxes, the sale may produce more money than the amount owed in taxes, interest, costs, and any prior liens the sale paid. Any remaining money is called surplus funds (sometimes called an “overage” or “overplus”). Under Delaware law, those surplus funds may belong to the former owner, the former owner’s heirs or estate, or other parties with recorded liens or claims.

Who can make a claim?

• The former owner (or the former owner’s estate if the owner is deceased).
• Heirs or beneficiaries of the decedent, if the owner left no estate administration or the estate’s representative authorizes them.
• Any party holding a prior recorded lien that was not paid by the sale proceeds.

How to find out if surplus funds exist

1. Identify the county where the property sits (New Castle, Kent, or Sussex County).
2. Contact that county’s tax office or tax collector. Ask whether a tax sale occurred, the sale date, the sale amount, the amount applied to taxes and liens, and whether the county is holding surplus funds.
3. Check the county deed/land records and the sheriff’s or tax sale notices for the sale. The county should have a public record of the sale and any publication notices.

Typical steps to claim surplus funds in Delaware

Procedure varies by county. The general steps are:

1. Confirm the county holds surplus funds. You usually must deal with the county treasury or the clerk of the court that handled the sale.
2. Identify the legally entitled claimant. If the owner is deceased, the estate’s personal representative (executor or administrator) usually has the primary right to claim the funds. If no estate was opened, an heir can sometimes claim funds but often must first open a small estate or obtain a court order recognizing the heir’s right.
3. Gather supporting documents. At a minimum these typically include:
   • Proof of the decedent’s death (death certificate).
   • Documents showing your relationship to the decedent (birth certificate, family tree, affidavit of heirship).
   • Letters testamentary or letters of administration if a probate estate exists.
   • The deed, past tax bills, and the county’s proof of sale or sale notice.
   • Valid photo ID for the claimant.
4. File a formal claim or petition. Many counties require a written claim form or a petition filed with the court that administered the sale. The petition will ask for proof that the claimant is entitled to the surplus. If the county directs you to a court, you may need to file a petition for distribution of surplus proceeds in the appropriate court and serve notice on interested parties (lienholders and others).
5. Provide notice and wait resolution. The county or court may require notice to be published or mailed to possible claimants and lienholders. If more than one person claims the money, the court decides who is entitled.
6. Receive the funds. Once the county or court approves the claim, it will issue payment. Expect administrative processing time and possible fees or claim costs.

What to do if the decedent left no will or no estate was opened

If your mother died leaving the house and you have not opened a probate case, you often must either:

• Open a probate estate and have the court appoint a personal representative who can claim the surplus, or
• Use a small-estate or summary procedure (if available and the amount qualifies) so the county or court can distribute the funds to heirs without a full probate.

Delaware has probate rules and small-estate procedures. The right path depends on the size of the surplus and whether other estate assets exist.

Common obstacles and how to handle them

• Competing claimants. Lienholders, the county, or multiple heirs can claim the same money. If that happens, a court often resolves the dispute.
• Missing paperwork. Counties require solid proof the claimant has the right to the funds. Missing probate documents or proof of relationship slows or blocks recovery.
• Time limits. Some procedures have filing deadlines. Contact the county or court promptly and act quickly once you learn of the surplus.

Where to go for official information and forms

Delaware state and county websites provide general statutes and court information. Useful official resources include:

• Delaware Code (state statutes): https://delcode.delaware.gov
• Delaware Courts (clerk and filing information): https://courts.delaware.gov
• County tax office or recorder of deeds for the county where the property was located (search for New Castle, Kent, or Sussex County official websites).

When to hire an attorney

Consider hiring an attorney if:

• Multiple parties claim the surplus and a court fight appears likely.
• The estate administration is complex or the estate has multiple creditors.
• You need help preparing court petitions, serving notice, or handling probate and title issues.

Practical example (hypothetical)

Suppose your mother owned a house in Kent County that a county tax sale sold for $60,000. The sale satisfied $15,000 of taxes, fees and prior liens. The county holds $45,000 in surplus. Your mother died without a will. You discover the surplus by contacting the Kent County tax office. To claim the funds you would either (1) open a small probate and obtain letters of administration, then present those letters and the death certificate to the county, or (2) file a petition with the local court asking it to order distribution of the surplus to you as the decedent’s heir. The county or court would review other claims and, if you are the rightful recipient, release the money to you after required notices and any waiting periods.

Key takeaways

• Act quickly. Contact the county tax office and the county recorder or clerk as soon as you learn of a sale.
• Gather proof: death certificate, relationship documents, probate letters (if any), and sale records.
• Follow county-specific procedures. Some counties handle surplus claims administratively; others route claims through the courts.
• Hire an attorney when claims are contested or probate issues are complex.

Disclaimer: This information is educational and does not constitute legal advice, nor does it create an attorney-client relationship. For advice about your specific situation in Delaware, contact a licensed Delaware attorney or the county tax office.

Helpful Hints

• Start with the county tax collector or treasurer. They often hold basic sale and surplus information and can tell you the local procedure.
• If the owner is deceased, get a certified copy of the death certificate early. Counties and courts almost always require it.
• Check whether a probate case already exists. Probate files can contain the documents you need to claim the funds.
• Get certified copies of deeds and sale notices from the county recorder’s office; those records show who was on title at the time of sale.
• Keep copies of every submission and certified mail receipts when you file claims or notices.
• If the amount is substantial, an attorney can help minimize mistakes that delay or forfeit your recovery.
• Use official Delaware resources for statutes and court forms: https://delcode.delaware.gov and https://courts.delaware.gov.