How to claim surplus funds after a foreclosure when your parent’s estate was never probated (Virginia)

Short answer: In Virginia, surplus proceeds from a foreclosure belong to the former owner (or that owner’s estate/ heirs). If your parent died and no probate was opened, you generally must open a probate administration or obtain court authority (for example, appointment of an administrator or special administrator) before the circuit court clerk or the purchaser will release the surplus to you. Act quickly and gather proof of death and heirship; consult the local circuit court clerk and consider an estate attorney.

Why this matters

When a property is sold at foreclosure and the sale brings more than the outstanding debt and sale costs, the extra money (the “surplus” or “overage”) does not automatically go to the mortgage holder. The surplus is paid to the former owner or that person’s legal representative. If the former owner is deceased and no probate exists, the surplus becomes part of the decedent’s estate and needs to be claimed through the probate process.

Key Virginia law references

General Virginia property law and foreclosure provisions: Virginia Code, Title 55.1 (Property and Conveyances). See: https://law.lis.virginia.gov/vacode/title55.1/.
Virginia probate and administration (wills, intestate succession, appointment of administrators): Virginia Code, Title 64.2 (Wills, Trusts, and Administration of Estates). See: https://law.lis.virginia.gov/vacode/title64.2/.
Each county or city’s circuit court handles probate and foreclosure records. Start with the clerk of the circuit court where the property was located. Virginia Courts information: https://www.vacourts.gov/courts/circuit.html.

Step-by-step process to claim surplus proceeds

Confirm that surplus funds exist and where they are held.

Ask the circuit court clerk who handled the foreclosure sale for: the foreclosure docket, the certificate of sale, the clerk’s report of sale, and any notation of surplus funds. The foreclosure sale record will show whether a surplus was deposited with the court or whether it remains with the purchaser or trustee.
Determine who is entitled to the funds.

The entitled party is typically the former record owner at the time of sale. If the owner is deceased, the rightful recipients are the owner’s estate and, ultimately, the heirs or beneficiaries under the owner’s will or under Virginia’s intestate succession rules. See Virginia Code Title 64.2 for intestacy rules and distribution priorities: https://law.lis.virginia.gov/vacode/title64.2/.
If the estate was never probated, open a probate case or request limited appointment.

Because the surplus is an asset of the decedent, you normally must open an estate administration to collect it. Common methods:
- File a petition for probate or for appointment of an administrator in the circuit court where the decedent lived or where the property was located.
- If you need only to collect the surplus and the estate is otherwise simple, ask the court to appoint a “special administrator” or a limited administrator for the specific purpose of collecting and distributing the surplus. Courts often grant limited appointments when a single asset must be collected.
- If the estate qualifies, ask whether Virginia’s small estate processes (summary procedures) apply for quicker distribution. The clerk can advise whether a simplified process is available in your case.
Prepare and file required documents.

Typical filings and evidence include: a certified death certificate; an affidavit or petition describing the asset (the surplus) and the foreclosure sale; any will (if known); proof of your relationship and entitlement (for example, heirship); notices required by the probate rules; and a request for letters testamentary or letters of administration.
Serve notice and allow time for claims.

Probate law requires notice to other heirs and creditors. The clerk or the court will advise what notice is required and how long you must wait before the surplus can be distributed.
Receive letters and claim the funds.

Once you have court authority (letters of administration or a specific order), present those documents to the clerk or the holder of funds. The court or holder should release the surplus consistent with the court order and Virginia law.
Distribute the funds according to the will or intestacy rules.

If the deceased left a will, distribute per the will. If there is no will, distribute to heirs under Virginia’s intestate succession rules. See Title 64.2 for distribution rules: https://law.lis.virginia.gov/vacode/title64.2/chapter2/.

Documents and information you will likely need

Certified death certificate for your parent.
Copy of the deed or property identification showing parent as record owner.
Foreclosure sale documents (clerk’s report, certificate of sale, sale ledger) from the circuit court where the sale occurred.
Any will or estate planning documents (if available).
Photo ID for the person filing and proof of relationship or heirship.
Proposed petition or affidavit asking appointment of administrator or limited/special administrator.

Practical tips and timelines

Start with the circuit court clerk where the property was located. Clerks can identify the foreclosure case, whether surplus funds were deposited with the court, and the local procedures for claiming funds.
Act quickly. There may be deadlines or statute-of-limitations issues that affect recovery of surplus funds.
If the amount is small, ask the clerk about simplified procedures or whether a limited appointment is appropriate to avoid a full probate administration.
Keep careful records of notices, filings, and distributions—probate case files are public and must be managed according to court rules.

When to consult an attorney

Consult an estate or probate attorney if the situation involves any complication such as competing heirs, disputes about ownership, a will contest, creditors claiming the surplus, or if the surplus is large. An attorney can prepare petitions, represent you in court, and make sure notices and distributions satisfy Virginia law.

Helpful hints

Contact the clerk of the circuit court (where the property was located) before filing. Clerks often provide procedural guidance and local practice notes: https://www.vacourts.gov/courts/circuit.html.
Ask for a copy of the foreclosure sale papers and any check or deposit showing the surplus.
If you are the sole heir and assets are limited, request a limited appointment or small-estate procedure to save time and expense.
Preserve evidence of your parent’s ownership and of family relationships (tax records, affidavits of kinship, family Bible entries, etc.).
If a lender or purchaser claims the surplus, insist on court direction—do not rely on informal agreements.

Example (hypothetical)

Suppose your parent, who lived in Richmond, owned a home that sold at foreclosure and created a $25,000 surplus that the circuit court clerk holds. The parent died without a will and no probate was ever opened. To claim the $25,000 you would:

Ask the Richmond circuit court clerk for the foreclosure file and confirmation of the $25,000 surplus.
File a petition in the Richmond circuit court to open administration for your parent’s estate and request appointment as administrator (or request a limited appointment to collect the surplus).
Provide the death certificate, identify heirs, and follow the clerk’s instructions for notice to others.
After appointment and any waiting period, present your letters or the court’s order to obtain the $25,000 and then distribute those funds per the will or, if none, under Virginia’s intestacy rules.

Where to find help and forms

Virginia Code — Title 64.2 (Wills and Estates): https://law.lis.virginia.gov/vacode/title64.2/.
Virginia Code — Title 55.1 (Property and Conveyances): https://law.lis.virginia.gov/vacode/title55.1/.
Virginia Courts — Circuit Court information (clerk contacts and locations): https://www.vacourts.gov/courts/circuit.html.

Final checklist

Confirm existence and amount of surplus with the circuit court clerk.
Gather certified death certificate, proof of ownership, and any will.
File for probate/administration or request a limited/special administrator if the estate is not open.
Serve required notices and obtain court authority to collect and distribute the surplus.
Consider counsel if the situation involves disputes or large amounts.

Disclaimer: I am not a lawyer and this is not legal advice. This article explains general Virginia procedures for educational purposes only. For advice about your specific situation, contact a qualified Virginia probate or estate attorney or the clerk of the circuit court where the property and foreclosure were handled.