Detailed Answer
When a home in West Virginia is sold at a foreclosure sale and the sale brings in more money than the amounts owed (the mortgage, costs, and fees), the extra money is called surplus funds. If the property owner died and their estate was never probated, the surplus belongs to the decedent’s estate and cannot legally be released to an heir or relative without proof of legal authority to receive estate property.
Here are the practical steps to claim surplus funds in West Virginia when the decedent’s estate was not probated:
-
Confirm whether surplus funds exist and who holds them.
Contact the county sheriff’s office and the circuit court clerk in the county where the property was sold. The sheriff conducted the foreclosure sale and the clerk’s office administers the sale records. Ask whether a surplus was produced, the amount, and where the funds are being held (often the clerk or sheriff).
-
Determine the decedent’s heirs or beneficiaries.
If the decedent left a valid will, beneficiaries named in the will are potential claimants. If there was no will, West Virginia’s intestacy rules (found in West Virginia Code, Chapter 44) determine who inherits. Because the decedent’s interest in the surplus is estate property, heirs or beneficiaries must establish their right to represent the estate before the court will release funds.
See West Virginia Code, Chapter 44 (Decedents’ Estates): https://code.wvlegislature.gov/44/.
-
Obtain legal authority to collect estate property.
Because the estate was never probated, you will generally need to do one of the following before the clerk or sheriff will pay out the surplus:
- Open a probate case (administration) and ask the circuit court to appoint a personal representative (administrator or executor). The court will issue Letters Testamentary or Letters of Administration that prove authority to handle estate assets, including surplus funds; or
- If the estate qualifies, use any available summary or simplified administration procedure under West Virginia law (Chapter 44) that allows quicker distribution without full formal administration. The availability and requirements vary by estate value and circumstances; contact the circuit court clerk to confirm whether your situation qualifies.
Opening probate typically requires filing a petition, providing a death certificate, and listing heirs and known creditors. The probate process establishes who can legally receive the surplus and resolves competing claims.
-
File a motion or claim with the court holding the funds.
Once a personal representative is appointed (or a qualified small‑estate procedure is completed), file the paperwork the clerk requires to obtain the surplus. That often means filing a petition for distribution or an order directing the clerk/sheriff to disburse the surplus to the estate’s representative.
-
Be prepared for other claimants and liens.
Foreclosure surplus is first applied to junior lienholders, then any remaining portion belongs to the owner (the decedent’s estate). Creditors of the decedent may also have rights to estate assets. Probate resolves competing claims and ensures the funds are distributed lawfully.
-
Act promptly.
While West Virginia does not leave surplus funds unclaimed forever, delay can complicate recovery—heirs move, records get lost, or other claimants appear. Contact the county clerk or sheriff soon after learning there may be a surplus.
What documents you will likely need
- Certified copy of the decedent’s death certificate
- Any original will or proof that no will exists
- Identification for the person seeking to act for the estate
- Letters Testamentary or Letters of Administration from the circuit court (after probate is opened)
- Affidavits of heirship or written consents, if applicable
- Documentation of the foreclosure sale and accounting showing the surplus (from the sheriff or clerk)
Relevant West Virginia law
West Virginia’s statutes governing decedents’ estates and probate procedure appear in Chapter 44 of the West Virginia Code. Provisions governing foreclosure and real property sales are in Title 38. Those statutes define who inherits under intestacy, the duties of personal representatives, and the procedures for probate administration and simplified administration where available.
West Virginia Code – Decedents’ Estates: https://code.wvlegislature.gov/44/
West Virginia Code – Real Property and Foreclosures: https://code.wvlegislature.gov/38/
Helpful Hints
- Start at the county level: the county sheriff and circuit court clerk can tell you whether surplus funds exist and where they are held.
- If the surplus amount is small, ask the clerk about any simplified or summary procedures for small estates under Chapter 44.
- Collect key documents early: death certificate, will (if any), deeds, and foreclosure sale paperwork. These will speed probate or a small‑estate claim.
- Expect to show proof of heirship if there is no will (family tree, birth certificates, or an heirship affidavit may be required).
- If the property carried multiple liens or taxes, those parties may have competing claims. Probate resolves priority and distribution.
- Keep careful records of all communications with the sheriff, clerk, and potential creditors or lienholders.
- Consider consulting a West Virginia probate or estate attorney if the surplus is substantial, if multiple heirs dispute rights, or if the foreclosure included contested liens or tax claims.
Disclaimer: This article explains general West Virginia legal principles and common procedures but is not legal advice. It does not create an attorney‑client relationship. For advice about your specific situation, consult a licensed West Virginia attorney or the circuit court clerk in the county where the property is located.