If a deceased family member has lost their property to either a Florida Foreclosure Sale or a Florida Tax Deed Sale, who is entitled to the Surplus Funds from that sale? Just because you have a Will or you are the direct heir of the deceased, it doesn’t mean the court or will automatically just cut you a check. There are some pretty specific procedures that must be followed in order to get those funds. What do you need to do?
I will start with Florida Foreclosure Sale Surplus Funds. If you are the direct descendant of the deceased party, i.e. spouse, child, etc. your attorney can file a Motion to Disburse Surplus Funds in the Foreclosure case on your behalf and cite to a very specific Florida Statute, 45.033(2)(b) that state in part, “An involuntary transfer or assignment may be as a result of inheritance.” This means that due to your lineal relationship with the deceased, you should be able to receive the Florida Foreclosure Sale Surplus Funds without a probate. Although some counties will grant the surplus funds based on the motion alone, some counties will require an affidavit signed and notarized from the heir(s) making a claim for the surplus. This can be a bit tricky and should be reviewed by your attorney prior to signing because you are swearing to the contents of the affidavit when it is signed by a Notary. You have to make sure all of the information in the affidavit is correct or you are effectively perjuring yourself to the court.
But what if there is a Will? If there is a Will that dictates who is to get the property (the home the deceased party owned before the foreclosure case), the Will must go through the Probate courts for the county in which the property is located. The Will tells the court what the decedent’s wishes were in regard to their property and those instructions must be followed by the court if possible. If the Will states the direct descendants are to get the property anyway the same as if there were no Will, then it might be best to not go through Probate unless there is other property that needs to be distributed, i.e. vehicles, bank accounts, personal belongings, etc.
This is very much the same for Florida Tax Deed Sale Surplus Funds. It is possible to simply file an affidavit claiming the surplus funds as the right of an heir. However, there are many counties that will require a probate to be done even if it is completely clear as to who the direct heirs are. In that case, it can take a little more time to get the funds because the probate can take some time. For me, the best way is to file the Affidavit, along with documents proving your relationship to the deceased party. The Clerk usually has an attorney that will look over the documents and will make the decision whether it is necessary to file a probate or not. If they decide you do, it is always helpful to have an attorney in your corner to help.
If a probate becomes necessary to retrieve your Florida Tax Deed Sale Surplus Funds, most often it can be done with a Petition for Summary Administration. Even if the amount in surplus funds is over the required $75,000 for Summary Administration, if the property was the homestead of the deceased party, it will be protected and exempt from this rule. The only time you might want to do a Formal Administration and request a personal representative is if the probate is complicated with much more property, or a large number of heirs.
If you believe you are entitled to Florida Foreclosure Sale Surplus or Tax Deed Sale Surplus funds because you are the heir of a deceased party, please give me a call for a free consultation. I can let you know if a probate will be necessary or not. Sometimes these cases can be quick, other times they can take much more time if a probate is necessary. It is always best to have a qualified attorney on your side. I handle Foreclosure Sale Surplus Funds and Tax Deed Sale Surplus funds in every County in the State of Florida, and I don’t get paid unless you do.