Understanding survivorship deeds and who gets foreclosure surplus in Utah

Short answer: A recorded right-of-survivorship (joint tenancy with right of survivorship) can affect who owns the property and who can claim surplus funds after a foreclosure sale — but you cannot usually create or assert a survivorship interest after the fact just to grab a bigger share of surplus. Timing, how the deed reads, who owned title at the moment of sale, and whether someone died before the sale are critical. If there is a dispute, you will likely need to present your claim to the entity holding the surplus and may need to file a court action.

How ownership forms matter in Utah

Utah recognizes different ways people can own real property together. The two most common are:

Tenancy in common: Each owner holds an individual, divisible share. No right of survivorship. When an owner dies, that owner’s share goes to their heirs or devisees.
Joint tenancy with right of survivorship: Co-owners each own an undivided interest in the whole, and when one joint tenant dies, the surviving joint tenant(s) automatically own the property.

Whether the deed creates a joint tenancy (with survivorship) depends on the deed language. Deeds that create survivorship should use clear language such as “as joint tenants with right of survivorship” or substantially similar wording. If the deed is ambiguous, Utah courts may interpret it as creating a tenancy in common.

Why timing matters for foreclosure surplus

When a foreclosed property sells, the sale proceeds pay the foreclosing creditor and expenses first; any remaining money is the “surplus” or “excess proceeds.” Who can claim those surplus funds depends on who owned an interest in the property at the time the sale cleared title.

If a joint tenant died before the foreclosure sale, the surviving joint tenant typically owns the property at the moment of sale and therefore is in the primary position to claim the surplus.
If both joint tenants are alive at the time of sale, they are co-owners. The surplus will usually be allocated according to ownership shares or other applicable priorities (liens, costs), not by after-the-fact changes to title documents that try to create survivorship.
If someone records a deed claiming survivorship after the sale (or right before the sale) with the intent to alter who gets surplus funds, that recording may be ineffective or challenged as fraudulent — especially if it was done to defeat creditors or was improperly executed.

Typical process for surplus claims in Utah

Procedures vary by the type of foreclosure (trust deed / nonjudicial sale vs. judicial foreclosure) and by the office that handles surplus funds (trustee, sheriff, or court). Common steps anyone asserting a claim should expect:

Obtain the official sale record and surplus custodian contact (trustee or sheriff’s office). The public record for the sale will show the date of sale and who handled the funds.
Determine who held title on the date the foreclosure sale cleared title. Certified copies of the deed(s) and chain of title are important.
Submit a written claim to the surplus custodian with proof of your ownership interest (recorded deed, death certificate if claiming by survivorship after a co-owner’s death, identity documents).
If the custodian denies or if competing claimants exist, you may need to file a quiet title or surplus-distribution action in Utah district court to resolve ownership and distribution.

Common fact patterns and how Utah law usually treats them

Here are a few hypotheticals showing likely outcomes:

Joint tenants A and B; A dies before the trustee’s sale: B becomes sole owner by survivorship and would normally be entitled to the surplus unless a prior lien or other legal priority takes it.
Joint tenants A and B; sale happens while both are alive: Both have co-ownership rights to the surplus. If the deed clearly created joint tenancy, the co-owners’ shares may be treated as undivided interests, but surplus distribution often follows practical allocation or court resolution.
Someone records a new deed claiming survivorship the day before or after sale to get the surplus: Courts look at intent, timing, and whether the transfer was legitimate. Late or suspicious recordings are frequently contested and can be set aside.

Practical steps to protect or assert a valid survivorship claim

Get an immediate title report or certified copy of the chain of title. Confirm the deed language and recording dates.
Collect supporting documents: recorded deed(s), death certificate(s) if claiming by survivorship, identification, and any correspondence from the trustee/sheriff handling sale proceeds.
Contact the entity holding the surplus and submit a written claim with attachments. Keep copies and use certified mail or other traceable delivery.
If there are competing claims or the custodian rejects your claim, consult an attorney about filing a quiet title or surplus-distribution lawsuit in Utah district court. A court can determine ownership and order distribution of funds.
Act quickly. Disputes over surplus funds can involve strict timelines and notice requirements. If you wait, you may lose the chance to assert your right in court.

When a deed’s survivorship language is unclear

If the deed does not clearly state “right of survivorship” or similar phraseology, Utah law often presumes tenancy in common rather than joint tenancy. In that case, a later attempt to treat the co-owners as joint tenants to claim more surplus will probably fail. A court may examine the parties’ intent, but ambiguous deeds favor division by share rather than automatic survivorship.

Where to look for Utah statutes and public resources

For background on recording and real property statutes, start with the Utah Code and Utah Courts resources. Examples:

When to hire a lawyer

Hire an attorney if:

Multiple people claim the surplus and the custodian refuses to distribute it.
Someone recorded a suspicious deed shortly before or after the sale.
You need to bring a quiet title or declaratory relief action.
You are unsure who owned title at the time of the sale or whether rights were cut off by foreclosure.

Helpful hints

Read the deed carefully. Look for exact words creating survivorship. Ambiguous language usually creates tenancy in common.
Check recording dates. Whoever had title on the sale date has the strongest claim to surplus funds.
Obtain certified copies of all recorded deeds and the foreclosure sale record early—these are the key documents.
Document any transfers and the reasons for them. Transfers made to defeat creditors or late transfers may be invalidated.
If you expect to rely on survivorship rights in the future, create clear estate planning documents now rather than trying to fix title after a foreclosure.
If in doubt, contact an attorney who handles real property and foreclosure matters in Utah — this area mixes property law, recording rules, and foreclosure procedure.

Disclaimer: This article explains general principles under Utah law and is for educational purposes only. It is not legal advice. For advice about a specific situation, consult a licensed Utah attorney who can review your documents and the full facts.