When a Florida property is sold at foreclosure and the owner of record is deceased, surplus funds are often generated — and just as often, delayed. Heirs frequently contact our office after being told that surplus funds exist, only to learn that the clerk or court is requiring probate before any money will be released. While this is common, probate is not always required, and understanding when it is — and when it is not — can save significant time, expense, and frustration.
How Surplus Funds Are Treated When the Owner Is Deceased
Under Florida Statute § 45.032, surplus funds are payable to the person entitled to them after subordinate lienholders are satisfied — typically the owner of record at the time of the foreclosure sale, as determined by the court. When that owner is deceased, the surplus funds generally become an asset of the estate.
Because the clerk cannot independently determine rightful heirs or legal authority, courts often pause disbursement until proper documentation is provided establishing who is entitled to receive the funds. This uncertainty is one of the primary reasons why surplus funds could remain held for extended periods following foreclosure.
When Courts Require Probate
A judge may require probate when:
- There are multiple potential heirs,
- Heirship is unclear or disputed, or
- The court requires confirmation of who has legal authority to receive the funds.
In these situations, probate provides the court with legal certainty and protects against improper payment — but it also often results in months of delay before surplus funds can be released.
When Probate May Be Avoided
Despite common belief, probate is not automatically required in every foreclosure surplus case involving a deceased owner. Depending on the facts, foreclosure surplus funds may sometimes be recovered without opening a full probate estate — particularly when:
- Heirs are clearly identifiable and uncontested,
- There are no competing claims to the funds,
- The estate qualifies as a small estate, or
- Florida statutes and case law support alternative procedures, such as summary administration or disposition without administration.
These alternatives exist specifically to reduce the time and expense associated with full probate proceedings. An experienced Florida foreclosure surplus attorney can evaluate whether one of these pathways applies and, when appropriate, present the court with a legally sufficient basis to release surplus funds without unnecessary delay.
Why Legal Guidance Matters
Heirs who attempt to recover foreclosure surplus funds on their own frequently encounter avoidable delays — or are incorrectly told that probate is required when it may not be. These situations are often worsened when third-party surplus recovery companies become involved, as they lack the legal authority to address probate issues and cannot represent heirs before the court.
Before filing a claim or signing any documents, heirs should always speak with a licensed Florida attorney who understands both foreclosure surplus law and probate implications. Signing documents from third-party surplus recovery companies can result in the loss of legal rights to funds that may otherwise be recoverable.
Next Steps for Heirs
If you are an heir to a deceased Florida homeowner whose property was sold at foreclosure, surplus funds may be available — but probate and estate issues can delay or derail recovery if not handled correctly. While probate may be required in some cases, it can often be minimized or avoided entirely with proper legal guidance.
If you believe surplus funds exist and are being held due to probate concerns, contact The Haynes Law Group for a free consultation. We handle surplus recovery cases in every county in the State of Florida and don’t get paid unless you do. Recover your foreclosure surplus funds now by calling 1-888-252-8754 for a free consultation.