Detailed Answer

In Massachusetts, a surplus arises when a foreclosed property or court-ordered sale of real estate brings in more than the debts owed. Both former spouses (after divorce) and survivors (after death) can claim these excess funds. You must act promptly, follow statutory rules, and file with the proper court.

1. Understanding Surplus Funds

Under M.G.L. c.244, §14, any amount remaining after a foreclosure or judicial sale belongs to the “mortgagor or owner,” including heirs, devisees, or former owners.(c.244, §14)

If no one claims the surplus within three years, the funds transfer to the county treasury under M.G.L. c.244, §26, but you still have a right to recover by filing a contract action against the county.(c.244, §26)

2. Surplus After the Owner’s Death

When the property owner dies, a survivor (spouse, heir, or devisee) must:

1. Open the estate in the Probate and Family Court under the Uniform Probate Code (M.G.L. c.190B).
2. Identify the surplus as an estate asset.
3. File a petition for distribution of assets, citing the probate docket and foreclosure file number.

You may use the small estate process (M.G.L. c.190B, §2-302) if the entire estate’s value does not exceed $25,000.

3. Surplus After Divorce

Following a divorce, the court may order the sale of former marital property and hold surplus funds in its registry. To claim your share:

1. Locate the divorce judgment and registry docket in the Probate and Family Court.
2. File a motion for release of funds, attaching the divorce decree and financial order.
3. Prove you held an interest (e.g., property settlement agreement or QDRO if retirement assets contributed to the sale price).

4. Steps to Assert Your Claim

Whether you are a survivor or former spouse, follow these steps:

• Confirm the foreclosure or sale date and court docket.
• Gather proof: marriage certificate, divorce judgment, death certificate, title records.
• Calculate your share based on the judgment or statutory entitlement.
• File your claim in the appropriate court (Land Court or Probate and Family Court).
• Serve notice on interested parties as required under court rules.
• Attend the hearing or provide affidavits as directed by the clerk.

5. Timing and Deadlines

You have three years from the sale date to claim under M.G.L. c.244, §26. Probate and divorce-related claims follow the court’s general rules for post-judgment motions (usually within one year unless extended by the court).

6. Required Documentation

• Certified copy of the foreclosure or sale order.
• Title report or deed showing ownership interest.
• Official death certificate or divorce decree.
• Marriage certificate if you are a surviving spouse.
• Affidavit of identity and relationship to the owner.

7. Where to File Your Claim

– Foreclosure surplus: Land Court or Superior Court, depending on the original foreclosure venue.
– Estate surplus after death: Probate and Family Court, in the decedent’s estate docket.
– Divorce surplus: Probate and Family Court registry under the divorce case docket.

Fees vary by court; check the local court website.

Note: This article provides general information under Massachusetts law. It does not constitute legal advice. You may wish to consult a qualified attorney for guidance specific to your situation.

Helpful Hints

• Act quickly—statutory deadlines are strict.
• Obtain certified court documents to avoid delays.
• Keep copies of all pleadings and proofs of service.
• Verify the court clerk’s filing fees and preferred forms.
• Consider a title search to confirm all potential claimants.
• Check the Land Court Rules (Rule 8 and Rule 22) for surplus motions.
• When in doubt, seek a consultation with a probate or real estate attorney.