During the time of this current pandemic, many people have lost loved ones. Some of those loved ones owned property which may have already gone into foreclosure or could go into foreclosure in the near future. If the property is sold at auction and the owner of record has passed away, who receives the Florida Foreclosure Surplus Funds? To understand that, we have to look to Florida’s laws of intestate succession. Of course, if there is a Will, it will take precedence over anything else and those parties named in the Will is to receive the surplus funds.
With an Intestate Estate, it means there is no Will. So, we have to look to the Florida Statute 732 to see who would receive the Florida Foreclosure Surplus Funds. First, if there is a spouse, then spouse would get one half of the intestate estate and any lineal descendants (children) will share the other half. If there are no lineal descendants, then the spouse gets everything. If there is no spouse or if there was a divorce prior to the person dying, then everything goes to the descendants. This is particularly important because the law looks at divorce as if each party pre-deceased the other. Divorce removes any ability to for a former spouse to receive anything from an intestate estate.
Next, if there is no spouse involved, then it goes to the descendants (children or possibly grandchildren) of the deceased. This means that if the deceased had three children, then the three children each get one-third of the Florida Foreclosure Surplus Funds that are available. If one of those three siblings are also deceased, then it goes to his/her children (grandchildren of the deceased). If the deceased sibling didn’t have any children, then the other two siblings each take half. If the decedent didn’t have any children at all, then the funds go to the decedent’s parents. If they are also deceased, then it goes to the decedent’s own siblings.
It only gets more complicated from there, but this is something that I deal with all the time. Additionally, even though this seems to be something that would be decided in probate court, it doesn’t have to be. According to Florida Statute 45.033(2)(b), the person who is to receive the funds can do so by “involuntary transfer”. The statute states, “An involuntary transfer or assignment may be as a result of inheritance.” In the case that a minor (or someone whose mental faculty is diminished) is to receive the funds, it could also be transferred involuntarily “as the result of the appointment of a guardian.”
Most of the Florida Foreclosure Surplus Funds cases can be handled this way without a Probate Court getting involved. However, even if things get a bit complicated, I can sometimes have everything straightened out with an evidentiary hearing and still keep things out of Probate Court. In the evidentiary hearing, the presiding judge will hear evidence of the different heirs’ claims to the surplus funds and may ultimately decide what percentage (if any) each heir will receive.
Because these issues can sometimes be complicated, it is extremely important to hire a qualified Florida Foreclosure Surplus Funds Attorney instead of a third-party surplus company. Those third-party companies may not understand the Florida laws of intestacy like I do. If they don’t understand these laws, then they may not be able to get you or your family members the maximum amount of the surplus funds you have coming to you.
If you believe you have Florida Foreclosure Surplus Funds owed you from the foreclosure sale of a deceased family member’s property, please give me a call for a free consultation. I handle Foreclosure Surplus Funds in every County in the State of Florida and I don’t get paid unless you do.