Overview — what “surplus” means and who can claim it

When a property is sold after a foreclosure, the sale proceeds first pay the costs of sale, the foreclosing creditor, and any lienholders in the order required by law. If the sale brings in more money than needed to pay those obligations, the extra money is called the surplus or overage. The person who owned the property (or that owner’s heirs or the estate) is generally the primary person with a right to the surplus, but other parties with recorded liens or court-ordered interests may also assert claims.

Because your question involves a deceased homeowner, you will likely need to show either (a) you are the personal representative (administrator/executor) of your mom’s probate estate, or (b) you are an heir with a right to distributions from her estate. If no probate estate has been opened, the foreclosure court may nonetheless require proof of your relationship and authority before releasing funds.

Relevant Indiana law resources

• Indiana Code — Property (foreclosure and sale provisions): https://iga.in.gov/legislative/laws/2024/ic/titles/032
• Indiana Code — Probate (estate administration and heirs): https://iga.in.gov/legislative/laws/2024/ic/titles/029
• Indiana Judiciary — court rules and self-help resources: https://www.in.gov/judiciary/rules/

Step-by-step: How to file a motion to determine your right to surplus funds

1. Gather basic case information.

   Find the foreclosure case number and county where the foreclosure was litigated. You will need the court name, case number, and file-stamped foreclosure judgment/order and proof of sale (sold at sheriff’s sale or by court order). You can get these from the county clerk’s office or the online court docket.

2. Confirm whether surplus funds exist and where they are held.

   Check the foreclosure docket for a post-sale accounting or an order directing the clerk or sheriff to hold surplus funds. Sometimes the purchaser paid less than the judgment and a surplus was ordered deposited with the clerk/sheriff. Contact the clerk of the court and the sheriff’s office where the sale occurred to learn if funds are being held.

3. Decide the correct court and legal vehicle to file in.

   Most surplus claims are handled in the foreclosure case itself (the same court that carried out the sale). In some situations—especially where the homeowner died without an estate opened—you may need to assert a claim in probate court. If the foreclosure case is the right place, you will file a motion in that case asking the court to determine the rightful recipient of the surplus.

4. Prepare the Motion to Determine Right to Surplus Funds.

   Typical elements of the motion:

   • Caption with the foreclosure case name and number (use the same court).
   • Title such as: “Motion to Determine Right to Surplus Funds” or “Petition for Distribution of Surplus Proceeds.”
   • Short statement of factual background (identity of the deceased homeowner, date of foreclosure sale, citation to the sale order showing funds were deposited, amount of surplus as shown by the record).
   • Your relationship to the deceased (heir, child, spouse, personal representative) and the authority you claim (e.g., letters of administration, small estate affidavit, provisional heirship evidence).
   • List of documents you attach as exhibits (death certificate, will if any, letters of administration or affidavit of heirship, identity documents, and any relevant foreclosure orders).
   • Precise relief requested — e.g., an order (1) determining that you are entitled to the surplus in the specified amount and (2) directing the clerk to release the funds to you (or to the estate’s personal representative), possibly subject to liens or other claims.
   • Request for a hearing and proposed order for the judge to sign.

   Prepare a proposed order for the judge to sign that mirrors the relief you request. Many courts appreciate a clean proposed order.

5. Attach supporting documentation.

   Attach a certified copy of your mom’s death certificate, proof of your relationship (birth certificate, marriage certificate), any probate letters (if you are personal representative), the foreclosure judgment and sale order, and any documentation from the clerk or sheriff showing the surplus amount. If there is a will, include it. If no probate has been opened, include an affidavit of heirs or other affidavits supporting your claim.

6. File the motion and proposed order with the clerk of the court where the foreclosure case sits.

   Pay the applicable filing fee or file a fee-waiver request if eligible. Keep copies of filed documents and note the date filed. The clerk can tell you the next steps for scheduling a hearing.

7. Serve the motion on interested parties.

   Serve the foreclosing lender, any junior lienholders, the purchaser at the sale, and anyone else who has appeared in the foreclosure case. Follow Indiana Trial Rules and local court rules for service (personal service, mail, or electronic filing service where required). Proof of service must be filed with the court.

8. Attend the hearing and be prepared to prove your claim.

   Bring originals and copies of all documents. Be ready to explain your legal relationship to the decedent, why you are entitled to the surplus, and to respond to competing claims. If other parties have claims, the court will decide priority based on the record and applicable law.

9. If the court awards the funds, follow the court’s procedures to receive them.

   The court will typically issue an order directing the clerk or sheriff to release funds to a particular person or estate representative. The clerk will require identification and possibly an endorsed order to disburse checks or issue a check to the estate’s bank account or representative.

Special issues when the homeowner is deceased

• If a probate estate exists: the personal representative should usually claim the surplus on behalf of the estate and will disburse according to Indiana probate law.
• If no probate estate exists: the court may require appointment of an administrator or accept an affidavit of heirship before releasing funds. Some counties allow a small estate procedure; consult county rules or an attorney.
• Creditors who hold valid liens recorded before the foreclosure may have claims against the surplus—expect potential disputes from lienholders or junior creditors.

Practical tips and common pitfalls

• Do not assume the clerk will automatically release surplus funds. You must request the court to determine distribution.
• Start early. Locating the foreclosure records and assembling probate paperwork can take time.
• If multiple heirs exist, agree on who will pursue the funds or be prepared for disputes that can delay distribution.
• Missing deadlines or failing to serve required parties can lead to denial of your motion or forfeiture of the funds.

Helpful Hints

• Contact the clerk of the foreclosure court first. Ask whether surplus funds are on deposit and what paperwork they require to release funds.
• Obtain a certified copy of the death certificate—courts almost always request it to prove the owner’s death.
• If you are not the personal representative, consider whether you should open a short probate administration. A personal representative simplifies claims to bank or court-held funds.
• Keep meticulous records of every communication with the clerk, sheriff, lenders, and other claimants.
• Consider a limited consultation with an Indiana attorney experienced in foreclosure or probate matters. A lawyer can draft the motion correctly and identify competing claims early.
• If an attorney is not an option, look for local legal aid organizations or court self-help centers for low-cost assistance.