North Dakota — Survivorship Deeds and Claims to Surplus Funds After a Foreclosure

Detailed answer

This is an overview of how a right of survivorship on a deed can affect who is entitled to surplus funds after a judicial or sheriff’s sale in North Dakota. This explanation assumes general facts common to many cases: a mortgage or lien led to a foreclosure sale, the sale produced money in excess of the lien(s), and more than one person may claim an ownership interest (for example, a deed showing joint owners with a right of survivorship).

Primary points you need to know:

• Survivorship changes ownership at the moment of death. A properly executed deed that creates a right of survivorship (often called joint tenancy with right of survivorship or a survivorship deed) means that when one owner dies, title passes automatically to the surviving owner(s) outside probate. If the survivorship right is valid and the decedent died before the time a distribution is made, the survivor holds title as owner.
• Who gets surplus funds depends on who held the property interest at the relevant time and on lien priority. After a foreclosure sale, courts or the sheriff apply sale proceeds to liens and costs in the order required by North Dakota law. Any remaining surplus is paid to whoever is legally entitled to the property or to holders of claims with priority over others. If a right of survivorship vested a surviving owner with full title before distribution of surplus funds, that surviving owner is typically the person entitled to the surplus (subject to other valid claims, such as unpaid liens or judgments).
• Timing and documentation matter. The key question is whether the survivorship interest vested before the event that fixed payment rights (for example, the date of distribution, the date of the sheriff’s accounting, or other controlling court deadlines). To claim surplus funds based on survivorship, a claimant usually must show proof of the survivorship interest: the deed, a certified death certificate, and any recorded affidavits or instruments that establish the chain of title.
• If the decedent’s interest did not pass by survivorship (or if the deed is unclear), the estate or heirs may assert competing claims. If the deed created a tenancy in common or another non-survivorship interest, or if the deed language is ambiguous, the right to surplus may pass through probate or otherwise be subject to distribution among heirs. Disputes often require a court determination.
• Practical procedure in North Dakota. In practice, a claimant who believes a survivorship right entitles them to surplus funds should contact the sheriff or the court clerk handling the foreclosure sale to learn the claim procedure and deadlines. You should be prepared to present recorded deeds, death certificates, and any recorded affidavits of survivorship. If another party contests the claim, you may need to file a motion with the court and ask the judge to order distribution to you.
• Potential obstacles. Junior lienholders, judgment creditors, or the decedent’s probate creditors might have superior claims to surplus funds in some circumstances. Also, if the survivorship language is defective or the deed was not properly recorded, the survivorship claim can fail.

Where to look in North Dakota law: North Dakota law governs foreclosure sales, distribution of proceeds, and property title transfers through the North Dakota Century Code and state court rules. For the statutory text and procedures that govern foreclosure sales and distribution of sale proceeds, see the North Dakota Century Code and related court rules at the North Dakota Legislative Branch and judicial websites: https://www.legis.nd.gov/cencode and https://www.ndcourts.gov. These resources will point you to applicable provisions on foreclosure procedure, distribution of proceeds, and property interests.

Because the outcome depends on the deed text, the timing of events, recorded documents, and possible competing claims, cases can turn on fine factual and legal details. If multiple parties assert ownership or if creditors challenge the claim, you may need a court order resolving competing claims before the sheriff will release surplus funds.

Helpful hints

• Confirm the deed type: look at the recorded deed to see whether it uses clear survivorship language (e.g., “with right of survivorship”).
• Check timing: determine the date of death and compare it to the foreclosure sale date and any court accounting or distribution dates.
• Gather documents: obtain certified copies of the deed, the death certificate, and the sheriff’s sale paperwork (sale report, accounting, and any notices).
• Contact the sheriff/court clerk early: ask about claim forms, filing deadlines, and documentation requirements for claiming surplus funds.
• Record any survivorship affidavits: if permitted, record an affidavit or other instrument that confirms the survivorship transfer so the chain of title is clear.
• Watch for competing claims: be aware that liens, judgments, or probate claims can affect entitlement to surplus funds.
• Consider an interlocutory court filing: if the sheriff will not release funds or if other claimants appear, you may need to ask the court to determine entitlement before distribution.
• Act promptly: there are practical deadlines in foreclosure contexts; delaying may forfeit rights or complicate your claim.
• Talk to a North Dakota real property attorney: an attorney can review the deed and facts, identify the controlling statutes and procedures, and, if necessary, file the correct motions or claims for you.