Detailed Answer
Short answer: If a foreclosure sale generated surplus proceeds and the former owner is deceased but no probate was opened, the surplus is normally held by the clerk of the circuit court. Heirs or a personal representative must establish a right to those funds. That usually requires proving heirship (through probate, summary administration, or affidavits recognized by the clerk) and then filing the clerk’s required claim or petition for disbursement. Act promptly: surplus funds can be claimed only after the court’s sale and disbursement process is complete and other creditors’ priorities are resolved.
How this works under Florida law
When a foreclosure sale brings in more money than is needed to pay the foreclosing creditor and costs, the excess (surplus) becomes money in the court’s registry or is held by the clerk for distribution. Florida law establishes the basic framework for judicial sales and distribution of sale proceeds (see Chapter 45, Fla. Stat.) and the probate and estate rules that determine who legally succeeds to a decedent’s assets (see Chapters 732–735, Fla. Stat.). For the distribution of surplus proceeds, see the statute for judicial sales and distributions, commonly cited in practice as Fla. Stat. §45.031 and the broader Chapter 45 rules at Chapter 45, Fla. Stat.. For how heirs are determined and how an estate is administered, see Chapter 732 (Intestate Succession) and Chapter 735 (Administration of Estates—Summary Administration) and Chapter 733 (Administration of Estates—General).
Typical steps to claim surplus funds in Florida when the owner died and no probate exists
- Identify whether surplus exists and where it is held. Check the foreclosure docket and the clerk’s records for the case to confirm the sale price, payoff, and any recorded surplus. Many clerks maintain a surplus fund link or will confirm funds are being held in the clerk’s registry.
- Contact the clerk of the circuit court in the county where the property was located. Each county clerk has its own internal procedure and forms for requesting disbursement of surplus funds. Ask the clerk what they need, whether a formal petition must be filed in the foreclosure case, and whether any local administrative requirements apply.
- Determine priority among claimants. Florida law and the foreclosure case determine who has priority to the surplus: junior lienholders, judgment creditors, federal or state tax liens, and then the former owner (or that owner’s successors). The clerk will enforce priority and may require notice to other claimants.
- Prove your right to the funds. If the property owner died and you are an heir or beneficiary, you will need proof of heirship. Acceptable proof often includes one of the following:
- An order appointing a personal representative or a final judgment from formal administration;
- A certificate or order from a summary administration under Chapter 735, Fla. Stat., if the estate qualifies (e.g., small estate procedures);
- An affidavit of heirship or other documents the clerk will accept for small-amount disbursements (the clerk may accept an affidavit in narrow circumstances, but many clerks require some probate paperwork).
- File the required papers with the clerk or in the foreclosure case. Typical filings include a petition or motion for disbursement of surplus funds, a certified death certificate, documents proving heirship or authority (letters of administration, summary administration order, or affidavit), and identification. The clerk will advise whether notice must be served on other parties or filed in the court file.
- Resolve competing claims and liens. If creditors (including taxing authorities) assert claims, the court or clerk will resolve priorities before disbursing funds. Be prepared that a federal tax lien or other recorded liens can take priority and consume some or all of the surplus.
- Receive funds after the clerk/court approves disbursement. After the clerk or judge approves, the surplus is disbursed to the entitled party—typically by check from the clerk’s office.
If probate has not been opened
You generally have two practical routes:
- Open probate or a summary administration so a personal representative can be appointed and claim the surplus on behalf of the estate. Summary administration (see Chapter 735) can be faster and less expensive if the estate qualifies (small estate threshold or the decedent has been dead more than two years in many cases). Once you have letters of administration or a final summary-administration order, the clerk will typically release funds to the representative for distribution to heirs.
- Ask the clerk whether a sworn affidavit of heirship will be accepted for direct disbursement. Some counties accept a relatively simple affidavit (plus a certified death certificate and ID) for small disbursements when there is no competing claimant. This varies widely by county. If a clerk accepts an affidavit, ensure it specifically meets the clerk’s form and proof requirements.
Common complications to expect
- Multiple people claiming to be heirs. The clerk may require a court determination of heirship before releasing funds.
- Recorded liens or tax claims. These can reduce or eliminate the surplus available to heirs.
- Delay while the clerk or court resolves priorities and notices. Expect administrative and court processing time.
- County-by-county variation. Local clerk practices differ, so direct contact with the county clerk’s office is critical.
Documents you’ll likely need
- Certified death certificate
- Copy of the foreclosure case number and sale/order information
- Recorded deed or title information showing decedent’s ownership
- Proof of heirship: will, letters of administration, summary-administration order, or an affidavit of heirship (if the clerk permits)
- Government-issued IDs for claimants
- Any recorded liens or creditor information you know about
When to consult an attorney
If multiple claimants dispute the funds, if there are significant recorded liens (including federal tax liens), if the amount at issue justifies the expense, or if the clerk requires a full probate, consult a Florida probate or real-estate litigation attorney. An attorney can file the correct petition in the foreclosure case, open probate or summary administration, and handle contested disbursement hearings.
Where to look for official authority
- Judicial sale and distribution rules: Chapter 45, Florida Statutes and Fla. Stat. §45.031.
- Intestate succession and who inherits: Chapter 732, Florida Statutes.
- Estate administration procedures (including summary administration): Chapter 735, Florida Statutes.
- Probate administration rules and procedure: Chapter 733, Florida Statutes.
Disclaimer: I am not a lawyer. This is general information, not legal advice. Laws and procedures change. For advice about your situation, consult a licensed Florida attorney or your county clerk’s office.
Helpful Hints
- Contact the county clerk early. Ask for the foreclosure case number, whether surplus funds exist, and the clerk’s required forms and steps.
- Bring a certified death certificate and ID when you contact the clerk or file documents.
- If the estate is small, explore summary administration under Chapter 735—this can be faster and less costly than full probate.
- Keep records of recorded liens or judgments; federal tax liens can defeat heir claims even if you are an heir.
- If you expect competing claimants, consider hiring a Florida probate attorney to avoid getting locked out of funds by a procedural mistake.
- Do not assume an oral family agreement is sufficient. The clerk will want documentary proof of legal entitlement.
- Ask the clerk whether they have a local form for a “petition for disbursement of surplus” or an affidavit template; using the clerk’s form speeds processing.
- Act promptly. Administrative timelines and resolution of priorities can take time; delays can increase the chance of disputes.