Detailed Answer
When a Wisconsin property owner dies or divorces after a sheriff’s sale, any sale surplus sits in the county’s circuit court registry under Wis. Stat. § 846.155. A former spouse or survivor must follow a clear process to claim these funds.
1. Identify the Source of Surplus Funds
Surplus proceeds arise when a foreclosure sale brings in more money than needed to pay all secured creditors. Under Wis. Stat. § 846.155, the clerk of courts holds the extra funds.
2. Determine Your Legal Status
- Former Spouse: You must have a final divorce judgment or property settlement order awarding you a share of the real estate proceeds. See Wis. Stat. § 767.61 (property division).
- Survivor/Heir: If the owner died, you qualify as a beneficiary under a valid will or under Wisconsin’s intestate succession scheme (see Wis. Stat. ch. 852). You must either be named in the will or qualify as an heir-at-law.
3. Open an Estate or Probate Action (Death Scenario)
If no probate case exists, you or another heir should petition to become personal representative under Wis. Stat. § 852.01. You’ll need:
- Certified death certificate
- Copy of the will (if applicable)
- Petition for Letters of Administration
Once appointed, the personal representative can file a claim for the surplus funds.
4. File a Claim with the Clerk of Circuit Court
Prepare and submit a Motion or Petition for Return of Surplus under Wis. Stat. § 846.155(6). Attach:
- Divorce judgment or property division agreement (for former spouses)
- Letters testamentary or letters of administration and death certificate (for survivors)
- Marriage certificate or proof of heirship, if needed
- Copy of the sheriff’s sale order showing surplus
Serve notice on all parties with recorded interests. The statute requires at least 28 days’ notice before a court hearing.
5. Attend the Court Hearing
The judge will review your evidence of entitlement. If the court finds you entitled, it will issue an order directing the clerk to disburse the surplus funds to you or your estate.
6. Obtain Your Funds
After the court’s order, the clerk of circuit court will distribute the funds by check. If you act through your attorney or personal representative, provide a written authorization for payment.
Helpful Hints
- Start early. The title and estate questions can drag out your claim.
- Review Wis. Stat. § 846.155 carefully to meet all deadlines and notice requirements.
- Gather certified copies of all key documents: divorce decree, death certificate, will, letters of administration.
- Talk to an attorney if multiple claimants exist or if the amount is substantial.
- Check with your county clerk’s office for local forms or filing fees.
- If you are an heir but no one has opened probate, you cannot claim surplus without first becoming personal representative.