Detailed Answer
Short answer: Surplus proceeds from a foreclosure sale are treated as the decedent’s property. If your parent’s estate was never probated, you cannot simply take the money — you must show you are the lawful successor (by probate, a small‑estate affidavit, or other court process) and follow the county or trustee procedures to claim the funds.
How surplus funds arise and who has the primary right to them
When a property is sold at foreclosure (judicial or nonjudicial), the sale proceeds pay the foreclosing lender and any higher‑priority liens first. If sale proceeds exceed those amounts, the excess is called the “surplus” (also “overage”). The surplus belongs to the person who owned the property at the time of the sale — here, your deceased parent — and then becomes part of their estate for distribution to heirs or beneficiaries under Washington law.
Which Washington laws apply
- Nonjudicial foreclosures (trustee’s sales) and procedures are governed by Washington’s trust deed chapter: RCW 61.24. See: RCW 61.24.
- Collection of estate property without formal administration (small‑estate type procedures) is provided for under RCW 11.62. See: RCW 11.62.
- If you need to determine who inherits when there is no will, Washington’s intestate succession rules apply: RCW 11.04. See: RCW 11.04.
Practical steps to claim surplus funds in Washington when the decedent’s estate was not probated
- Confirm whether surplus exists and where it is held. Contact the county sheriff/treasurer, the trustee who conducted the sale, or the county superior court clerk (depending on whether the foreclosure was judicial or nonjudicial). Ask for the sale record and whether funds remain as surplus and which office is holding the money.
- Determine the correct route to collect the funds.
- If the surplus is held by a trustee or county officer, they will advise whether they require a court order, probate documents, or a small‑estate affidavit before releasing funds.
- Because surplus proceeds are intangible (cash), they are treated as personal property of the decedent’s estate and must be collected through probate or an authorized alternative under RCW 11.62.
- Use Washington’s collection‑without‑administration option when eligible (RCW 11.62).
RCW 11.62 provides a limited procedure to collect certain personal property of a decedent without full probate. If the surplus amount and total personal property of the estate fall within the statutory threshold and other requirements are met, an heir or beneficiary may use the affidavit process to claim the money. Contact the county clerk for local forms and exact eligibility rules; the statute sets the framework: RCW 11.62.
- If the estate is too large or does not qualify, open probate.
If RCW 11.62 does not apply (for example, the surplus is greater than the small‑estate limit or other statutory conditions aren’t met), you will generally need to open a formal probate in the Washington superior court for the county where your parent lived or owned property. After appointment of a personal representative, the court can authorize distribution of surplus funds to heirs or beneficiaries.
- Gather required documents. Typical documents requested when claiming surplus include:
- Certified death certificate for the decedent.
- Proof of your identity.
- Documentation proving you are an heir or beneficiary (will, certified letters testamentary/administration, order appointing you as personal representative, or an affidavit of heirship where allowed).
- Any recorded documents establishing ownership or liens and the foreclosure sale record (trustee’s deed, sale notice).
The trustee or county may require certified copies and originals for verification.
- File the needed paperwork and follow local procedures. If using the small‑estate affidavit, complete the required affidavit form and submit it to the office holding the funds. If opening probate, file a petition in superior court and follow the court’s notice and administration requirements. Some counties have local forms or specific clerk instructions — check the county superior court website or call the clerk.
- If multiple heirs exist, coordinate or consider an agreement. If more than one heir has a claim, you should obtain signed releases or a distribution agreement among heirs to present to the holder of the funds. Courts often require proper accounting and agreement before releasing estate assets.
- Act promptly and consider deadlines. While exact deadlines for claiming foreclosure surplus vary by circumstance, delays can complicate recovery (other claimants may arise, or funds could be placed into a different holding process). Start the process as soon as you learn of surplus funds.
If you encounter a trustee, lender, or county that refuses to release funds
If the holder requires probate or refuses an affidavit and you believe you meet statutory conditions for collection without administration, ask for the specific legal basis for the refusal and consider:
- Requesting a written explanation of required documentation;
- Filing a petition in superior court asking for an order directing release of the funds to you as the lawful successor; or
- Hiring an attorney to file the appropriate pleadings, especially if there are competing claims or complex title issues.
Common complications
- Multiple heirs with disputed shares.
- Unknown or out‑of‑state heirs.
- Junior lienholders who assert a prior claim to the surplus.
- The estate contains other assets that make small‑estate procedures inapplicable.
Where to look for help in Washington
Start with the county superior court clerk or the county official who handled the foreclosure sale. For statutory text and guidance on procedures referenced above, see:
- RCW 61.24 (trust deeds and trustee’s sales): https://app.leg.wa.gov/rcw/default.aspx?cite=61.24
- RCW 11.62 (collection without administration / small‑estate type affidavits): https://app.leg.wa.gov/rcw/default.aspx?cite=11.62
- RCW 11.04 (intestate succession rules): https://app.leg.wa.gov/rcw/default.aspx?cite=11.04
Helpful Hints
- Start by calling the county clerk or the trustee who conducted the sale — they can tell you whether surplus exists and what office holds it.
- Collect certified documents early: death certificate, recorded deed, trustee sale paperwork, and any will or prior probate documents.
- Check whether your case fits the small‑estate/collection‑without‑administration rules under RCW 11.62 before opening full probate.
- If there are competing claimants or the surplus amount is large, consider hiring an attorney experienced in probate and foreclosure‑surplus claims.
- If you are an out‑of‑state heir, prepare to provide certified identity documents and proof of your relationship to the decedent.
- Do not sign away your rights without understanding the legal effect; ask for time to consult if someone offers to handle the claim for a fee.
- Document every communication with county offices, trustees, or other claimants in writing and keep copies of all filings.
Disclaimer: This article explains general Washington law concepts and common procedures. It is educational only and not legal advice. The facts of every situation differ. For advice about a specific case, consider contacting a Washington attorney or the county superior court clerk.