Quick answer

If a foreclosure sale produced surplus funds (money left over after the mortgage, fees, and prior liens were paid), those surplus funds belong to the deceased owner’s estate. When the decedent’s estate was never opened in probate, you generally have two common paths in Illinois: (1) use the Illinois small-estate/summary process if the estate qualifies, or (2) open a probate estate (and obtain letters of administration) so someone with legal authority can claim the surplus. You can also sometimes petition the foreclosure court directly for distribution of surplus funds to an heir, but the court usually wants either proof of heirship or a proper personal representative. Always verify the required process with the county circuit court where the foreclosure happened.

Detailed answer — step by step

1. Confirm there are surplus funds and where they are held

– Find the foreclosure case in the county circuit court where the property was located. The case file or the court’s register of actions should show whether the sale generated a surplus and where the funds were deposited (often with the county clerk, sheriff, or the court’s receiver/commissioner).
– If you know the county but not the case number, search the county circuit court records online or call the clerk’s office and ask how to find foreclosure sales and surplus funds records.

2. Understand who owns the surplus

– Under Illinois law the money remaining after payment of liens from a foreclosure sale is part of the decedent’s estate and must be distributed to the rightful owners (creditors first, then heirs). It does not automatically pass to the buyer or lender. The foreclosure court typically retains authority to distribute those funds properly.

3. Determine whether you can use a summary (small estate) procedure

– Illinois offers summary procedures for collecting certain assets without a full probate administration in appropriate cases. If the estate qualifies under the Probate Act’s summary procedures, an heir or a person entitled to the property can often collect certain kinds of assets by affidavit or a short court process. If you meet the statutory requirements for summary administration or a small estate affidavit, this can be faster and less expensive than opening a full estate.

See the Illinois Probate Act (Probate Act of 1975, 755 ILCS 5) for the statutes that create summary and small estate procedures: Illinois Probate Act of 1975 (755 ILCS 5).

4. If the small-estate route is not available, open probate or obtain letters of administration

– If the estate’s assets or circumstances do not qualify for summary procedures, you will usually need to open a probate estate and be appointed personal representative (executor or administrator). The appointed representative then has authority to file a motion or petition with the foreclosure court (or the clerk holding the funds) to obtain distribution of the surplus to the estate. The representative can then distribute the funds under the Probate Act.

– The probate petition is filed in the county where the decedent lived. After appointment, the representative can present letters of office or the court order to the county clerk, foreclosing court, or sheriff to claim the surplus.

5. How to claim the surplus from the foreclosure case

– Typical procedural steps:

• Obtain certified copies of the foreclosure court’s confirmation of sale and any ledger showing sale proceeds and surplus.
• If you are a personal representative: file a motion/petition in the foreclosure case or present your letters to the custodian of the funds and ask for disbursement to the estate.
• If you are an heir using a small estate affidavit or summary procedure: file the affidavit or petition required by the probate court, then present that documentation to the party holding the funds (court/clerk/sheriff) and the foreclosure court as proof of entitlement.
• If the foreclosure court requires a separate petition for distribution of surplus funds, file that petition and attach proof of the decedent’s death, proof of heirship (or letters), and identification.

6. Documents you will likely need

• Certified death certificate for the decedent.
• Certified copy of the foreclosure court’s order confirming sale and accounting of proceeds (showing surplus).
• Proof of heirship: will (if any), beneficiary designations, or affidavits / family documents showing relationship.
• If available, letters testamentary or letters of administration from the probate court. If you don’t have letters yet, proof that you qualify for a small estate affidavit (if pursuing that route).
• Government-issued ID for the claimant(s).

7. Priority of claims the court will consider

– The court will first satisfy valid liens and costs of sale (mortgage, judgments, fees). After that, remaining funds go to the decedent’s estate for distribution to creditors and heirs according to Illinois law. If there are multiple claimants (creditors, multiple heirs), the court may require notice and a hearing to decide distribution.

8. Timelines and practical considerations

– Do not delay. Even though surplus funds are typically held pending distribution, statutes of limitations and procedural rules apply. Prompt action reduces the risk of complications (missing notice deadlines, challenges from other claimants, or the county reverting funds to the state under unclaimed property rules after a long dormancy).

– Counties differ in how they handle surplus funds. Some counties have dedicated procedures and forms for claiming surplus funds from a foreclosure sale; others require petitions into the foreclosure case. Contact the clerk of the circuit court or sheriff in the county where the sale occurred to learn local practice.

9. When to get a lawyer

– Get an attorney if the claim is contested, if there are multiple heirs, complex debts, or if you can’t meet the small estate requirements. An attorney can file the proper petitions, represent you in court, and help obtain letters of administration if needed.

Helpful tips and practical hints

• Start by getting the foreclosure case number and the court’s order confirming sale. That document usually identifies any surplus and who holds it.
• Call the county circuit court clerk or sheriff’s office (county where the property was located) and ask how surplus foreclosure funds are claimed in that county.
• If the estate seems small, ask the probate clerk whether the estate qualifies for summary administration or a small estate affidavit under the Illinois Probate Act (Probate Act of 1975, 755 ILCS 5): https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2109.
• If you must open probate, hire a probate attorney or use the court’s self-help resources to file a petition for appointment of an administrator. After appointment you can present letters to claim the funds.
• Gather proof of relationship (birth records, marriage certificate) and the decedent’s death certificate before filing any petition—courts require clear proof of entitlement.
• Be prepared for the court to require notice to creditors and potential heirs before distributing the funds.
• Keep records of all filings, communications with the county, and receipts related to the foreclosure and any probate steps you take.

Resources

• Illinois Probate Act of 1975 (general reference): https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2109
• Illinois Courts — general self-help information and local court contacts: https://www.illinoiscourts.gov/
• County circuit court clerk or sheriff where the property was located (search via the Illinois Courts site for the correct county contact).