Foreclosure Surplus Funds and Tax Deed Surplus Funds - When is a Probate Necessary to Receive your Surplus Funds?

Representing Homeowners

If you have inherited a property from a deceased relative, you many need to do a probate in order to receive any surplus funds from the foreclosure sale or tax deed sale of that property. It isn’t always necessary to do a probate, but there are some counties that may require it depending on your specific circumstances. For instance, if the ownership of the property is in question or if there are multiple heirs who are claiming ownership. This may come into play if there was a Will that states who the property itself was supposed to go to upon the death of the former owner. The court may require the Will to be probated so they know exactly who gets the Florida Foreclosure Sale or Tax Deed Sale Surplus Funds as these surplus funds now take the place of the home and property.

However, a probate isn’t always necessary if the heirs are clearly known. For Foreclosure Surplus Funds, you look at Florida Statute 45.033(b), which states, “An involuntary transfer or assignment may be as a result of inheritance.” Involuntary transfer happens when there is no Will, and it is clear as to who the heirs are. For instance, if a parent dies and leaves just his/her children as heirs. But if the deceased has a great many potential heirs, the court could decide that a probate needs to be done in order to list out the heirs and their particular percentage of the estate.

For Tax Deed Surplus Funds, we must look to Florida Statute 197.582(2)(a), which states, “if the property is purchased for an amount in excess of the statutory bid of the certificateholder, the surplus must be paid over and disbursed by the clerk.” This statute doesn’t state exactly how to deal with heirs, but you must make a claim for the surplus funds and state that you are the former owner of the property, or the legal heir(s) of the former owner of the property. Sometimes an affidavit with proof of your kinship to the deceased former owner is enough. Other times the court may require a probate to be done in case there are some heirs who are missing. Additionally, the clerk of court for your county may intervene in the case if they feel there is someone being left out of the case that may have a stake in the surplus funds. In this case, a probate may be necessary to add these other parties so they may be paid their rightful percentage as well.

Lastly, if there is other property besides just the surplus from the Florida Foreclosure Sale or Tax Deed Sale, you might want to do a probate. If someone dies with a Will, that Will needs to be probated to determine who gets any property that was left. In the State of Florida, all Wills need to be probated in order for them to be valid. You can’t just show up with someone’s Will and ask to be handed the money or property. You must go through a probate proceeding first. Also, if someone dies without a Will and there is some question as to who gets the property, funds from bank accounts, stocks, bonds, or even vehicles, it is necessary to go to probate so a personal representative can be appointed by the court to distribute the property and funds in the proper way. In these cases, any Florida Foreclosure Sale Surplus Funds or Tax Deed Sale Surplus Funds become property of the estate to be distributed by the decedent’s wishes or by way of the court appointed personal representative of the estate.

If you are unsure about whether a Probate is necessary for your specific case. Please give me a call for a free consultation. I can help you to determine whether a probate is necessary for your Florida Foreclosure Sale Surplus or Tax Deed Sale Surplus case. I always suggest you hire a qualified Attorney who can help you. I handle Foreclosure Surplus Funds and Tax Deed Surplus Funds cases in every County in the State of Florida, and I don’t get paid unless you do.

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