How survivorship works in New Jersey

Several forms of co-ownership exist. The most common that affect survivorship are:

• Joint tenancy with right of survivorship: when one co-owner dies, title automatically vests in the surviving joint tenant(s) without probate.
• Tenancy by the entirety: a special form of ownership available only to married couples; when one spouse dies, the surviving spouse holds full title automatically.
• Tenancy in common: no automatic survivorship; each owner’s share passes by will or intestacy.

The crucial point: whether a deed creates a survivorship interest depends on the deed’s language. Phrases like “joint tenants with right of survivorship” or that the grantees take title “as joint tenants” or “as tenants by the entirety” are what courts look for. Ambiguous deed language typically will not create a survivorship right.

How surplus funds from a foreclosure sale are treated

When a foreclosure sale produces more money than needed to pay valid liens and sale costs, the remaining money (the surplus) must be distributed to whoever lawfully owns the property or has a superior legal claim. In New Jersey foreclosures and sheriff’s sales, the sheriff and court supervise distribution. If title already passed to a survivor before distribution, that survivor is ordinarily entitled to the surplus. If title has not passed or ownership is disputed, the court will decide who receives the funds.

For general New Jersey foreclosure resources, see the New Jersey Courts’ self-help foreclosure pages: https://www.njcourts.gov/selfhelp/foreclosure.html.

Common scenarios and what they mean

1) Deed clearly creates survivorship and the co-owner died before the surplus distribution

If the deed created a valid right of survivorship and the co-owner died before the sheriff distributed surplus funds, title passed immediately to the surviving owner. That survivor has the strongest claim to the surplus and usually will receive it.

2) Deed clearly creates survivorship but the co-owner died after the sale or after distribution

Timing matters. If the co-owner was alive at the time the court or sheriff determined ownership and distributed funds, the court may have paid out according to the ownership record at that time. If distribution occurred before the death, the survivor cannot retroactively assert survivorship to recover a larger share unless a court reopens distribution for a valid reason.

3) Deed does not create survivorship (tenancy in common)

If the deed shows tenancy in common or otherwise lacks survivorship language, you cannot convert it into a survivorship interest after the fact. The deceased owner’s share passes by will or intestacy and must be claimed through probate or by the decedent’s personal representative.

4) Deed language is ambiguous or disputed

When deed language is unclear, the party asserting survivorship bears the burden of proof. The court may look at the deed wording, surrounding circumstances, and recorded instruments. You may need to file a petition in court to establish ownership before the surplus is paid.

Practical steps to assert a survivorship claim to surplus funds

1. Obtain a certified copy of the deed from the county clerk to check exact wording.
2. Get a title search or title report showing who currently holds record title and any liens or judgments that affect distribution.
3. If a co-owner died, get a certified death certificate and any documents (like marriage certificate) that help prove tenancy by the entirety, if claimed.
4. Contact the sheriff’s office or the court handling the foreclosure to learn the claimed surplus amount and their procedures for claiming funds.
5. If the sheriff or court has not distributed the funds and you have a survivorship claim, file a written claim with supporting documents. If the claim is contested, you likely must file a motion or petition in the Superior Court (Chancery Division) asking the court to recognize survivorship and order distribution.
6. If distribution already occurred, you may need to seek relief from the court that ordered distribution. This is often harder and has strict deadlines and procedural rules.

Evidence the court will want to see

• Certified deed(s) showing the precise ownership language.
• Certified copy of the death certificate for the deceased co-owner (if asserting survivorship by death).
• Title report or chain-of-title documents showing the recording history.
• Marriage certificate if claiming tenancy by the entirety.
• Any prior court orders or sheriff’s office notices related to the foreclosure sale and surplus funds.

Timing and deadlines

Procedural deadlines can be strict. Claims to surplus funds often require filing within a short time after the sheriff’s notice or court order. If a claim is not timely asserted, the court may disburse funds to another party. Contact the sheriff or review the foreclosure case docket immediately after a sale to protect your rights.

When you should talk to a lawyer

Seek legal help if any of the following apply:

• Ownership or the deed language is ambiguous or disputed.
• Funds were already distributed and you believe you were entitled to some or all of the surplus.
• Multiple parties claim the same surplus funds and the sheriff or court is holding the money.
• There are liens, judgment creditors, or other encumbrances that complicate distribution.

An attorney experienced in New Jersey real property and foreclosure law can evaluate the deed, advise on the best evidence, and file the necessary court papers to protect and assert your claim.

Where to find more information

New Jersey Courts self-help foreclosure information: https://www.njcourts.gov/selfhelp/foreclosure.html

New Jersey Legislature (search statutes and titles): https://www.njleg.state.nj.us/