Detailed answer

Short answer: Possibly — but it depends on three key facts: the exact wording on the deed, whether the survivorship interest vested before or after the foreclosure sale, and whether the county records and proof of death clearly show the surviving owner. If you can show that a right of survivorship gave the survivor title before the foreclosure sale, that person may be entitled to the surplus. If the survivorship did not vest until after the sale or the record does not reflect the change in ownership, the claim is more complicated.

1) What a right of survivorship is and how Idaho law treats it

A right of survivorship (often created by language such as “joint tenants with right of survivorship” or “as tenants by the entirety” where applicable) means that when one co-owner dies, ownership automatically vests in the surviving co-owner(s) without probate. Idaho recognizes common forms of survivorship ownership when the deed clearly creates it. To know whether the deed created survivorship, you must read the deed’s exact words and review the county recorder’s index.

2) Why the timing of death matters

Timing is critical. If the co‑owner died before the foreclosure sale and survivorship language in the deed automatically vested title in the survivor, then at the time of the sale the survivor was the owner and may have the strongest claim to any surplus proceeds. If the co‑owner died after the sale, the survivor did not hold title at the time of sale and cannot generally transform a post‑sale survivorship into a larger share of the sale proceeds.

3) How foreclosure sales and surplus funds are handled

When property sells at a trustee sale or judicial foreclosure, the sale pays secured debts first. If sale proceeds exceed the debts and costs, those leftover funds (the “surplus” or “overage”) become payable to the person or persons lawfully entitled to them. In practice, the trustee or sheriff will look to the recorded chain of title and any outstanding liens to determine who should receive surplus funds. Disputes often require either a claim with the trustee/sheriff or a court proceeding to determine entitlement.

4) What you will need to prove a survivorship claim

To establish entitlement you typically must show:

• The deed contains clear survivorship language that created a right of survivorship.
• If a co‑owner died, evidence of the date of death (certified death certificate) and evidence that the survivor’s interest vested before the foreclosure sale.
• That the survivor is the record owner at the time distributions are being made, or that a court should recognize the survivor’s claim despite recording gaps.

5) Common obstacles

Typical problems that defeat or complicate a survivorship claim include:

• Ambiguous or absent survivorship language in the deed.
• Death that occurred after the sale date.
• Unreleased liens or junior interests that have a superior claim to the surplus.
• No record evidence (for example, an unrecorded transfer) to show the survivor held title at the sale.

6) How disputes are resolved

If the trustee, sheriff, or purchaser withholds surplus funds because of competing claims, you can usually:

1. Provide the trustee/sheriff with the deed, certified death certificate, and a title report showing the vesting of title in the survivor; or
2. If the trustee/sheriff is unwilling to release funds, file a petition in the appropriate Idaho district court asking the court to determine entitlement to the surplus proceeds and to order distribution.

7) Practical example (hypothetical)

Suppose Alice and Bob hold title to a house by deed reading “Alice and Bob, as joint tenants with right of survivorship.” The property is subject to a deed of trust and the lender conducts a trustee sale. If Bob died two months before the sale and Alice recorded proof of death and an affidavit of survivorship before the sale, the trustee’s records should show Alice as the sole owner at sale time. If the sale produced surplus funds, Alice would have the primary claim. If Bob died two months after the sale, Alice could not use the later death to enlarge her share of surplus proceeds from that earlier sale.

8) Where Idaho statutes and local practice matter

Idaho’s statutory scheme governs foreclosure procedure and the duties of trustees and sheriffs. The statutes also set timing rules, notice requirements, and procedures for distributing sale proceeds. For the exact foreclosure statutes and wording, consult the Idaho Code (see Title 45 for mortgages, deeds of trust, and foreclosure-related provisions and Title 55 for real property conveyances and estates). You can browse Idaho statutes here: Idaho Statutes.

Bottom line: A valid survivorship interest can help you claim surplus funds — but you must prove that the survivorship vested before the sale and that you are the person lawfully entitled to the proceeds. If the facts are uncertain or other creditors or recorded interests compete for the surplus, you will likely need a court ruling.

Disclaimer: This article explains general principles of Idaho law for educational purposes only. It is not legal advice and does not create an attorney‑client relationship. For advice about a specific situation, contact a licensed Idaho attorney.

Helpful hints — practical steps to protect or assert a survivorship claim

• Obtain certified copies of the deed, the deed of trust, the trustee’s sale notice, and the trustee’s sale report.
• Get a certified death certificate for the deceased co‑owner and note the exact date of death.
• Check county recorder records to confirm whether any affidavits of survivorship, probates, or other documents were recorded before the sale.
• Ask the trustee or sheriff what documentation they require to release surplus funds and provide it promptly.
• Obtain a current title report to identify all recorded liens and any cloud on title that can affect surplus distribution.
• If you cannot obtain the funds administratively, consider filing a petition in Idaho district court to declare who is entitled to the surplus; bring originals or certified copies of deeds and death records to court.
• Act quickly. Some counties or trustees have internal deadlines for presenting claims to surplus funds, and others will not release funds until competing claims are resolved.
• If multiple claimants assert rights, be prepared for litigation. Keep communication professional and always document correspondence.
• Consult a licensed Idaho attorney if title language is ambiguous, if the timing of death vs. sale is close, or if competing liens exist.

Useful resource: Idaho statutes and county recorder offices can explain local recording and foreclosure practices. Start at the Idaho Legislature’s statute page: https://legislature.idaho.gov/statutesrules/idstat/