Short answer

Possibly — but not automatically. In Kentucky, the party who holds legal title at the time the court or clerk distributes surplus funds from a foreclosure sale is the first person the court will recognize. A properly created and recorded right-of-survivorship (joint tenancy with right of survivorship) can affect who holds title after an owner dies. However, the distribution of surplus funds can also depend on the recorded chain of title, probate proceedings, competing claims (creditors, lienholders, heirs), and court procedures. You must act quickly and provide proof of your survivorship claim to the court or clerk handling the surplus. This article explains how that works and what steps to take.

Disclaimer

This is educational information, not legal advice. I am not a lawyer. For advice about a specific situation, consult a licensed Kentucky attorney.

How surplus funds from a foreclosure are treated

When a foreclosed property sells for more than the amount owed, the sale generates surplus (also called overage or excess proceeds). Courts or county clerks handle distribution. In most cases, the court follows the recorded title and the priority of claims: lienholders and creditors are paid first according to priority, and any remaining funds go to the owner(s) of record at the time of sale.

How right of survivorship on a deed matters

Rights of survivorship change who owns the property when one owner dies without requiring probate to transfer title. If two or more people hold title as joint tenants with right of survivorship, the surviving joint tenant typically becomes sole owner automatically at death. In Kentucky, the form of the deed and how title is recorded will determine whether a survivorship right exists and can be asserted.

Key points

The recorded deed controls who the county and court see as owner at the time of distribution.
If the deed clearly creates a right of survivorship and is properly recorded, a survivor can claim the owner’s share without going through probate.
If title is unclear or probate has intervening claims, a court may require proof of survivorship (death certificate, recorded deed, affidavit) or a formal quiet-title/probate action before releasing funds.

Hypothetical example

Mary and John own a house as joint tenants with right of survivorship. The mortgage is in default, and the property is sold at a foreclosure sale. Sale proceeds pay the mortgage, interest, and fees and leave $20,000 in surplus. John died before the sale. If the deed was recorded showing Mary and John as joint tenants with rights of survivorship, Mary can present the recorded deed and John’s death certificate to the clerk or court to claim the entire surplus. If instead the deed listed them as tenants in common (no survivorship), John’s share would pass to his heirs or estate and Mary could only claim her half.

Steps to assert a right-of-survivorship claim to surplus funds in Kentucky

Obtain the foreclosure file and distribution order from the circuit court or county clerk handling the sale.
Examine the recorded deed(s) in the county property records. Look for language creating joint tenancy or explicit right of survivorship.
Gather proof: the original or certified copy of the recorded deed, the decedent’s death certificate, government ID for the survivor, and any affidavits of survivorship or recorded survivorship deeds.
File a written claim with the circuit court clerk or follow the procedures the court used for notifying claimants. Include copies of your proof. Some counties use a form; others accept a motion or petition.
Notify any interested parties (heirs, personal representative of the estate, lienholders). The court may require notice before distribution.
If the clerk or court contests the claim, you may need to file a quiet-title action or a motion in the foreclosure case to establish your right before funds are released.

Common complications

Conflicting records. If the public records show the decedent as sole owner or show a different form of ownership, the court may require probate or a title action.
Unrecorded agreements. An unrecorded written agreement or oral promise typically will not change the distribution of public funds.
Estate claims. If the decedent’s estate has undergone probate and a personal representative claims the surplus, the court must reconcile competing claims.
Timing and deadlines. Foreclosure and surplus proceedings have deadlines. Waiting too long can extinguish your ability to claim funds.

Practical documents you’ll likely need

Recorded deed showing the survivorship language or joint tenancy language.
Certified copy of the death certificate for the deceased co-owner.
Photo ID for the claimant.
Any recorded affidavit of survivorship or survivorship deed.
Copies of foreclosure sale and distribution orders from the court docket.

Where to look for applicable Kentucky law and local rules

Kentucky statutes and court rules govern property, conveyances, and civil procedure. The Kentucky Revised Statutes are searchable at the legislature’s website: https://apps.legislature.ky.gov/statutes/. For court procedures and local practice, see the Kentucky Court of Justice: https://courts.ky.gov. Contact the circuit court clerk in the county where the foreclosure occurred for specific filing requirements and forms.

When to get an attorney

Hire a Kentucky attorney if:

Someone disputes your claim to the surplus.
Title or deed language is ambiguous.
The surplus involves large sums or competing creditors.
You need to file a quiet-title action or respond to a probate claim.

Helpful hints

Act quickly. Court procedures and deadlines can be short after a foreclosure sale.
Use recorded documents. Courts rely heavily on what is in the public record.
Get certified copies. Use certified death certificates and certified copies of recorded deeds.
Check for liens. Outstanding lienholders may have priority over owner claims to surplus funds.
Ask the clerk. County clerks and circuit clerks can explain filing steps and local forms, but they cannot give legal advice.
Preserve evidence. Keep records of notices, filings, and service to other parties.
Consider alternate dispute resolution. In some cases a negotiated settlement with other claimants avoids costly litigation.

Bottom line

A right-of-survivorship on a deed can let a surviving co-owner claim the full owner’s share of foreclosure surplus funds in Kentucky, but only if the deed and records establish that survivorship and no higher-priority claims exist. You must gather recorded evidence, file the correct claim with the court or clerk, and be prepared to resolve competing claims. If the situation involves conflicting records or litigation, consult a Kentucky attorney promptly.