Detailed Answer

This article explains, in plain language, how surplus funds from a sheriff’s sale after a foreclosure are handled in Wisconsin when the owner died and the decedent’s estate was never probated. This is general information and not legal advice. Laws and local procedures vary — you should consult a Wisconsin attorney or the court clerk for your county for case-specific guidance.

What are “surplus funds”?

When a mortgage or lien holder forecloses and the property sells at a sheriff’s sale for more than the total amount of liens, costs, and fees, the remaining money is called surplus funds. Wisconsin law governs how the surplus is held and who may claim it. See Wis. Stat. § 846.15 for statutory guidance on sale surplus and the distribution process: https://docs.legis.wisconsin.gov/statutes/statutes/846/15.

Who is entitled to the surplus when the owner died?

If the property belonged to your deceased parent at the time of the foreclosure, the surplus is an asset of your parent’s estate. The money does not automatically go to a relative. The person(s) legally entitled to the surplus will usually be:

• The personal representative (executor/administrator) of the decedent’s probate estate, if one has been appointed; or
• If no personal representative has been appointed, the heirs at law under Wisconsin intestacy law (for example, a surviving spouse and children), or beneficiaries named in a will, if one exists.

Typical steps to claim the surplus

Below are common steps used in Wisconsin to locate and recover surplus funds when a decedent’s estate has not been opened. Procedures and document requirements can vary by county and by the court handling the foreclosure.

1. Confirm whether surplus exists and where it is held.

   Contact the sheriff’s office that conducted the sale and the clerk of the circuit court where the foreclosure case was filed. Ask for the foreclosure case number, the sheriff’s sale return, and whether surplus funds were deposited with the court or county. The foreclosure judgment and the sheriff’s sale return will show any surplus amount and where it was deposited.

2. Determine the current legal owner of the funds.

   If the decedent left a will that was probated, the personal representative controls estate assets, including surplus funds. If no probate exists, the heirs at law have a potential claim. The court will require documentation to show who is entitled.

3. Choose a procedure to get the funds:
   • Open probate and have a personal representative appointed. The personal representative can then claim the surplus as an estate asset and distribute it under the will or Wisconsin intestacy rules. For general probate information and how to begin in Wisconsin, see the Wisconsin Court System’s probate resources: https://www.wicourts.gov/services/probate/index.htm.
   • File a direct petition in the foreclosure/circuit court for distribution of the surplus. In many counties, interested persons (heirs or an appointed representative) may file a petition asking the court to order distribution of surplus funds to named claimants. The petition typically includes the decedent’s death certificate, proof of kinship (heirship affidavit or family tree), an accounting of liens and costs, and any probate documents if available. The court may require notice to other potential claimants and creditors before distribution.
   • Use any available small-estate summary procedure, where applicable. Wisconsin provides simplified procedures for small estates in certain situations. If the estate qualifies for a simplified process, you may use statutory small-estate procedures to collect personal property (which may include surplus funds). Check with the local court clerk or an attorney to see if a small-estate affidavit or summary procedure applies.
4. Prepare the necessary documents.

   Courts commonly want:

   • Certified death certificate for your parent;
   • Evidence of your relationship (birth certificates, marriage certificate, family records, heirship affidavits);
   • Copy of foreclosure judgment, sheriff’s sale return, and docket showing the surplus deposit; and
   • Letters testamentary or letters of administration if a personal representative exists.
5. Give required notices and attend any hearing.

   The court may require notice to creditors or other possible heirs and may hold a hearing before signing an order releasing funds. If the court approves your petition or the personal representative’s request, the court will order the county or sheriff to disburse the surplus to the person or estate representative named in the order.

What about creditors and other claims?

Surplus funds are part of the decedent’s estate. Creditors with valid claims against the estate may have priority to be paid from estate assets. If you obtain surplus funds without properly notifying creditors or following probate procedures, you could be exposed to liability. That is why courts often require notice to creditors before distribution.

Practical timeline and urgency

Act promptly. Even when an estate has not been probated, surplus funds are an identifiable asset and a court may require that claims be made within a certain period. Local procedures and time limits vary. Contact the county clerk of circuit court where the foreclosure occurred right away to learn the local steps and deadlines.

When to get lawyer help

If the surplus is a substantial amount, if multiple people claim the funds, if there is a will dispute, or if you face questions about creditor claims, consult a Wisconsin probate or real estate attorney. An attorney can help prepare petitions, advise about whether to open probate, and reduce the risk of personal liability.

Helpful Hints

• Contact the sheriff and the clerk of circuit court for the county where the foreclosure case was filed to find the foreclosure case file and confirm any surplus deposit.
• Get certified copies of the decedent’s death certificate early — courts nearly always require one.
• Gather family records (birth certificates, marriage certificates, prior wills) that show who the heirs or beneficiaries are.
• If you find a recorded will, check whether it was probated. If not, you may need to start probate to have a representative appointed to collect assets.
• Ask the court clerk whether your county has a standard form or local practice for petitions to claim foreclosure surplus — many Wisconsin counties have templates or specific instructions.
• Remember that surplus funds are estate assets; do not distribute them informally among family members without a court order or an appointed representative.
• If you are unsure whether a small-estate procedure applies, ask the court clerk or consult an attorney; using a small-estate shortcut incorrectly can create problems.
• Keep detailed records of all communications and paperwork you submit to the court, sheriff, or county offices.