Can I file a motion to determine my right to surplus funds after my mom’s property was foreclosed?

Short answer: Yes—if a foreclosure sale produced money left over after paying the foreclosing lender and other authorized claims, you can ask the Kansas district court to determine who is entitled to that surplus and to order distribution. This article explains the typical steps to file that motion, the evidence you will need, and where to look in Kansas law.

Disclaimer

This is educational information, not legal advice. I am not a lawyer. Laws change and facts matter. If you need legally binding help, consult a licensed Kansas attorney.

Detailed answer: Step‑by‑step guide under Kansas law

When a foreclosure sale brings in more money than required to satisfy the foreclosing creditor and other lawful charges, the leftover money (the “surplus” or “overage”) is typically held by the sheriff or court. Kansas law provides procedures for distribution of sale proceeds and for resolving competing claims. While the exact statutory citations are technical, the practical steps you will follow are consistent across cases.

1. Confirm whether there is surplus money and who holds it

   Contact the county sheriff’s office that conducted the sale and the district court clerk where the foreclosure case was heard. Ask if any surplus funds remain and whether the sheriff or court has custody. Get the foreclosure case number, sale date, and the exact surplus amount in writing.

2. Determine who may claim the surplus

   Potential claimants include the former homeowner (the decedent’s estate or heirs), junior lienholders, judgment creditors, and taxing authorities. If your mother died and ownership passed to heirs or into a probate estate, those representatives typically stand in the homeowner’s place. If multiple parties claim the funds, the court will sort priorities.

3. Gather documents proving your entitlement

   Common documents the court expects include:

   • Death certificate (if the homeowner is deceased).
   • Will, letters testamentary, or letters of administration if the estate is open.
   • Affidavit of heirship or small estate affidavit (if applicable under Kansas law).
   • Proof of identity and relationship to the decedent (IDs, birth certificate, family records).
   • Foreclosure case docket sheet, sheriff’s sale papers, and accounting showing the surplus.

4. Decide on the right filing: motion, petition, or separate lawsuit

   In many Kansas counties you file a petition or motion in the district court that handled the foreclosure asking the court to “determine the rights to and direct the distribution of surplus proceeds.” Courts treat these filings as ancillary to the foreclosure. The pleading’s title varies (“Petition for Distribution of Surplus Funds,” “Motion to Determine Right to Surplus Proceeds,” etc.).

   Where procedure is unclear, you can file a new (but typically related) action in district court asking for declaratory relief or to quiet title to the surplus funds. If an estate or probate is open, the personal representative may need to seek the funds through the probate case.

5. Draft the motion or petition

   Key contents:

   • Caption and case number of the foreclosure action (or new case caption if starting an action).
   • Identify the surplus amount, sale date, and who currently holds it.
   • State your legal interest (heir, personal representative, surviving spouse, junior lienholder, etc.) and attach proof.
   • Ask the court to determine entitlement and order distribution to you (or to the estate/payee you name).
   • Request service on all known interested parties: foreclosing lender, sheriff, junior lienholders, taxing entities, and any heirs.

   Attach all supporting evidence as exhibits. Be concise and factual.

6. File the motion/petition and serve interested parties

   File at the district court clerk’s office where the foreclosure was handled. Pay the filing fee unless you qualify for fee waiver. Kansas requires proper service on affected parties. Have the sheriff or a process server serve lenders, lienholders, and other potential claimants in accordance with Kansas rules. Follow local court rules for notices and timelines.

7. Attend the hearing and be prepared to present proof

   The court will often set a hearing. Bring originals or certified copies of your documents and be ready to explain why you are entitled to the funds. If others contest your claim, the court will hear evidence and decide priorities under Kansas law.

8. If the court awards the surplus, follow distribution steps

   If the judge orders distribution, the court or sheriff will usually prepare a disbursement order. The party receiving funds may need to provide a receipt or complete paperwork at the sheriff’s office to obtain the check. If funds are sizeable or disputed, the court may require the petitioner to post bond or follow trust accounting rules.

9. If someone objects or the matter is complex, consider hiring a Kansas attorney

   Disputes over priority (e.g., multiple liens, probate claims, spousal rights) can become technical. An attorney can file necessary pleadings, handle service, and present evidence to protect your claim. If probate is involved, the personal representative may need court approval to accept funds on behalf of the estate.

Where to look in Kansas law

Kansas statutes and court rules govern sheriffs’ sales, distribution of proceeds, and priority among claimants. For general statutory text and to find the exact procedures and deadlines, review the Kansas statutes and local district court rules. The searchable Kansas statutes site is here: https://www.ksrevisor.org/statutes/. Relevant statutes about execution, sales, and distributions are located in the civil procedure chapters (see Chapter 60 and related provisions).

Because statutes are technical and counties may apply local procedures, check the district court clerk’s website for the county where the sale occurred, or ask the clerk about local forms and filing practices.

Sample short prayer you can adapt

“Petitioner requests the court to determine the rights of all persons to the surplus funds arising from the sheriff’s sale in Case No. [#], order disbursement of the surplus to the petitioner (or to the estate), and grant such other relief as the court deems proper.”

Helpful Hints

• Start by asking the sheriff’s office and the district court clerk for a written confirmation of the surplus and who holds it.
• If your mom died without a will and the estate is small, Kansas has small‑estate procedures that can simplify claiming funds. Ask the clerk or an attorney about small‑estate affidavits.
• Keep proof of every step (certified mail receipts, proof of service, copies of pleadings, and clerk stamps).
• Identify all possible claimants early (taxing authorities, junior liens, mortgage servicers) and serve them—failure to serve someone with a legal claim can cause delays or reversal.
• If the foreclosure case file is old or unclear, obtain a certified docket or transcript of sale from the clerk to prove the sale and surplus amount.
• Act promptly. Even if there is no strict single deadline to file a petition for surplus, delays complicate locating records and opposing claimants may intervene.
• If you are the personal representative or executor, use your letters of authority to support the claim; courts often prefer formal estate representatives to collect estate assets.
• Consider limited-scope (unbundled) representation if you cannot afford full counsel—many Kansas lawyers offer discrete services (drafting the motion, serving papers, or attending the hearing).

Next practical steps

1. Contact the sheriff’s office and the district court clerk for the foreclosure case and get documentation of the surplus.
2. Gather proof of your legal relationship to the decedent or lien priority documents.
3. Draft and file a petition or motion in the district court asking the court to determine rights to the surplus and order distribution.
4. Serve known claimants and attend the hearing with originals of your evidence.

If you want, tell me the county where the foreclosure sale occurred (or the foreclosure case number) and whether your mother left a will or a probate estate exists. I can give more tailored next steps and a checklist for the petition.