Short answer

Possibly — but it depends on the deed language, the timing of death(s), who owned title at the critical times, and whether you can prove the survivorship interest in court or to the entity holding the funds. In Illinois, a valid right of survivorship (for example, a joint tenancy with right of survivorship or tenancy by the entirety for spouses) generally vests ownership in the surviving owner at the moment the other owner dies. That surviving owner is often the person entitled to any surplus from a foreclosure sale. But if the deed did not create a true survivorship interest, if the death occurred after the sale but before distribution, or if records and filings do not show the survivorship, you may need to clear title in court or file claims to get the funds.

How survivorship works under Illinois property rules

Illinois recognizes different ways co-owners hold title. The most common are:

• Joint tenancy with right of survivorship (JTWROS) — When the deed clearly creates a joint tenancy with survivorship, each joint tenant holds an equal, undivided interest during life. When one joint tenant dies, the survivor automatically owns the whole property by operation of law.
• Tenancy in common — Each owner holds an individual share that passes by will or intestacy at death. No automatic survivorship.
• Tenancy by the entirety — A special survivorship form for married couples (recognized in many states, including Illinois for certain transactions) that gives survivorship rights between spouses.

Whether a deed creates a survivorship interest depends on the exact words used in the deed. Phrases such as “with right of survivorship,” “joint tenants with right of survivorship,” or “as joint tenants” are commonly used. If the language is ambiguous, a court may interpret the deed and determine whether a survivorship estate was intended.

How this affects surplus funds from a foreclosure sale

In an Illinois foreclosure sale, if the sale produces proceeds above what is needed to pay liens and costs, the excess (surplus) is distributed to the party or parties entitled to it. The distribution follows the ownership and priority rights that exist at the relevant times. Key timing questions include:

• Who owned the property immediately before the foreclosure sale?
• Did a co-owner die before the sale (so the survivor owned the property at sale time)?
• Did death occur after the sale but before distribution of surplus?

If a survivorship interest caused title to vest in the survivor before the sale, the survivor is typically the owner and entitled to the surplus. If someone claims survivorship but title did not vest (for example, because the deed did not create survivorship or the deed was ambiguous), the surplus may be split according to the legal ownership shares or handled after a court determination.

Common factual scenarios (hypothetical examples)

1. Co-owner died before foreclosure sale: The deed name shows “John Doe and Jane Doe, joint tenants with right of survivorship.” John dies before the sheriff’s sale. Jane, as surviving joint tenant, owns the property at sale time and should receive any surplus distributed after lien payments.
2. Co-owner died after sale but before distribution: The joint tenant dies after the sale. If the survivor still holds title at the time of distribution, the survivor gets the surplus. But if the deceased’s heirs try to claim a share, the survivor may need to prove survivorship to the court or disbursing authority.
3. Deed is unclear: The deed lists two owners without clear survivorship language. Illinois courts often treat that as tenancy in common unless the deed clearly states survivorship. In that case, each owner or their estate may be entitled to a share of any surplus according to ownership percentage.

How to assert a survivorship claim to surplus funds in Illinois

Steps you may need to take:

1. Obtain certified documents: Get a certified copy of the deed, death certificate of the deceased co-owner, and any other recorded documents (e.g., affidavits) that show survivorship language and the date of death.
2. Check the foreclosure case file: Identify the foreclosure case number and check who the court or sheriff recognizes as claimants. There is usually a process for claiming surplus funds after a sheriff’s sale.
3. Notify the disbursing authority: Contact the sheriff, clerk of court, or other entity holding the surplus and submit a written claim with supporting documents. Counties vary in procedure.
4. File a court motion if necessary: If the funds are contested or the holder refuses to release them, you may need to file a petition in the foreclosure court (or a separate declaratory/quiet-title action) asking the judge to determine rightful ownership and direct distribution.
5. Consider recovery remedies: If funds were already distributed incorrectly, you may need to ask the court to reopen distribution, file a motion for restitution, or bring a civil action against the recipient.

Because procedures and forms vary by county and by the court that handled the sale, local counsel can speed this up and reduce risk of losing time-sensitive rights.

Relevant Illinois law and where to look

Foreclosure procedures and distribution of sale proceeds are governed by Illinois foreclosure law and the Illinois Code of Civil Procedure. For statutory text and details about foreclosure and distribution of proceeds, consult the Illinois Compiled Statutes and the foreclosure provisions found in the Code of Civil Procedure. You can search and read the statutes on the Illinois General Assembly website: Illinois Compiled Statutes (ILCS). For practical court procedures and local rules, check the county sheriff’s website or the Illinois Courts site at illinoiscourts.gov.

When you should talk to an attorney

Talk to an Illinois real estate or foreclosure attorney if:

• You believe you hold a survivorship interest but the deed language is unclear.
• Death occurred very near the sale or distribution date and timing is disputed.
• The sheriff or clerk refuses to release surplus funds to you.
• Funds already went to someone else and you want them returned.

An attorney can file the proper court papers, present title evidence, and handle contests or fraud claims.

Helpful hints

• Get a copy of the recorded deed from the county recorder or the recorder’s online database. Look for the exact wording about survivorship.
• Obtain a certified death certificate — most institutions require a certified copy to recognize survivorship.
• Act quickly. Some claims to surplus funds have strict deadlines and courts may require prompt motions.
• Keep originals and certified copies of all documents; submit certified copies with any court or sheriff paperwork.
• If multiple heirs or purchasers claim the funds, do not spend distributed money until the dispute resolves — you may have to repay it.
• Use a title company to run a full title report if ownership history is complex. That report helps identify recorded acts that affect survivorship.
• County practices vary — call the sheriff’s office or the circuit clerk to learn the local surplus-claim procedure before filing in court.