Detailed Answer — How to Recover Foreclosure Surplus When a Parent Died Without Probate (Massachusetts)

Short answer: In Massachusetts, surplus proceeds from a foreclosure sale belong to the estate/owner of the property. If a parent died and no probate was opened, the person who can legally receive those funds is generally the appointed personal representative (executor/administrator) or, failing that, the heirs who can prove legal title by probate or another court process. You will usually need to open a probate or similar proceeding (or be appointed by the Probate and Family Court) so the court can identify the rightful recipient and issue authority to collect the funds.

Disclaimer: This article is for general information only and is not legal advice. For help with a specific situation, consult a licensed Massachusetts attorney or the Probate and Family Court.

How it works (plain language)

When a foreclosure sale produces more money than is needed to pay the mortgage, costs, and other valid liens, the remaining money is called a surplus or surplus proceeds. Under Massachusetts law the surplus does not automatically go to the buyer at the sale — it belongs to the owner of record (or that owner’s estate). See the foreclosure statutes in Chapter 244 of the Massachusetts General Laws for the legal framework: M.G.L. c.244.

Typical chain of events and legal options

Confirm the surplus exists. Contact the foreclosure purchaser’s attorney or the foreclosure commissioner who conducted the sale. Ask whether a surplus remains and who currently holds it.
Identify who can claim it. If the decedent’s estate was probated, the personal representative (executor/administrator) has authority to collect. If there was no probate, there is no one with court-authorized legal authority until someone petitions the Probate and Family Court.
If no probate exists: open an estate or seek limited court authority. The usual path is to file a petition in the Probate and Family Court to open an estate (administration) and to appoint a personal representative. That person can then claim the surplus on behalf of the estate. Massachusetts probate statutes and procedures are in Chapter 190B of the General Laws: M.G.L. c.190B.
Small-estate or simplified procedures. For modest estates there may be simplified procedures or informal administration in the Probate Court, but a court record that identifies heirs or a personal representative is typically required before a third party (like a foreclosure purchaser) will release funds.
If heirs agree and the holder of funds is willing, they may release funds by written agreement — but that is less secure than a court order. Many banks or purchasers will ask for a court order or letters of appointment before paying surplus proceeds.

Practical step-by-step checklist

Follow these practical steps to claim surplus funds in Massachusetts when the decedent’s estate was never probated:

Gather basic documents: death certificate; deed and copy of foreclosure sale documents; the foreclosure sale docket or notice; photo ID for the person seeking funds; proof of relationship to the decedent (birth certificate, marriage certificate).
Contact the foreclosure sale officer/attorney: Request written confirmation of whether surplus funds exist and the current holder (often the mortgagee’s lawyer, foreclosure commissioner, or purchaser).
Decide whether to open probate:
- If you want full authority to collect and distribute the decedent’s assets, file for appointment as personal representative in the Probate and Family Court. The court will issue Letters of Administration (or Letters Testamentary if there’s a will).
- If the estate is very small you may qualify for an informal or simplified procedure under Massachusetts probate rules; check with the local Probate and Family Court clerk or a probate lawyer.
File the appropriate petition: Submit the petition to open administration or for appointment, attach the death certificate and any known will, and list expected assets (including the surplus). The Probate Court will issue letters that allow you to present a claim for the funds.
Present the court order and claim the funds: Provide the holder of the surplus with Letters of Administration/Letters Testamentary and any court order the Probate Court issues directing distribution. The holder should then release funds to the estate, which the personal representative will distribute per law.
If the holder refuses to release funds: Your lawyer can file a motion in the Probate Court or an action in the appropriate court asking for an order directing release. Sometimes a receiver motion or interpleader action occurs if multiple parties claim the funds.

Hypothetical example

Mrs. A owned a home and died intestate (without a will). The mortgage lender foreclosed and sold the property. The sale produced $50,000 more than the mortgage balance and fees. Because no probate was opened, there was no personal representative to collect the surplus. Mrs. A’s adult child files a petition in the Probate and Family Court to be appointed administrator. The court issues Letters of Administration. The administrator presents the letters to the foreclosure purchaser’s attorney and collects the $50,000; the administrator then distributes the money per Massachusetts intestacy rules (in accordance with the Probate Court’s instructions).

Key Massachusetts law references

Foreclosure law (sale and distribution rules): M.G.L. c.244 — https://malegislature.gov/Laws/GeneralLaws/PartII/TitleI/Chapter244
Probate and administration (appointment of personal representatives, estate procedure): M.G.L. c.190B — https://malegislature.gov/Laws/GeneralLaws/PartII/TitleII/Chapter190B
Massachusetts Probate and Family Court (local procedures, court contact): https://www.mass.gov/orgs/probate-and-family-court

When to get a lawyer

Consider hiring a Massachusetts probate attorney if any of these are true:

Multiple people claim the surplus or you expect disputes among heirs.
The amount of the surplus is significant enough that distribution disputes are likely.
The holder of the funds refuses to release money without a court order.
You are unfamiliar with Probate Court filings and timelines.

A probate attorney can prepare the necessary petition, represent you at any hearings, and request a court order directing the release of funds. If you cannot afford an attorney, contact the Probate Court clerk for guidance on filing forms, or look for local legal aid organizations that handle probate and estate matters.

Helpful Hints

Act quickly. Time can make collecting assets harder — find out where the surplus is held and begin the probate or collection process without delay.
Start with the foreclosure purchaser’s attorney or the foreclosure commissioner; they often know whether surplus funds exist and who currently holds them.
Gather evidence of heirship early: birth certificates, marriage certificate, and any documents showing ownership or residency can smooth the process.
Even if you don’t want to open a full probate, expect the Probate and Family Court to require documentation (and often a short filing) to create a legal record of entitlement.
Review local Probate Court procedures online at Mass.gov before you file. Each county court will have clerk contacts and filing instructions: Massachusetts Probate and Family Court.
If multiple heirs agree and the holder of funds is cooperative, you may be able to resolve distribution with a written agreement — but a court order is more secure and often required by banks or attorneys.
Keep copies of everything: sale notices, correspondence with the foreclosure attorney, petition filings, and court orders.

If you want, I can outline typical Probate Court forms you may need, a sample checklist of documents to bring to a probate lawyer, or a short template letter to request surplus status from a foreclosure attorney. Tell me which you prefer.

Reminder: This information is educational only and does not create an attorney-client relationship. For legal advice about your specific case, consult a licensed Massachusetts attorney or the Probate and Family Court.