Detailed Answer

Short answer: In New Mexico, surplus (excess) funds from a foreclosure sale belong to the former owner (or the owner’s estate/ heirs). If your parent died and no probate was opened, you typically must show legal authority to collect the surplus — by opening probate or using a permitted small‑estate or heirship procedure — and then file a claim with the court or agency holding the funds. The practical steps are: locate the sale record and the holder of the funds, gather proof of death and of your relationship or authority, use the appropriate probate or affidavit procedure under New Mexico rules, and then file the surplus claim with the court, sheriff, or clerk handling the foreclosure sale.

Who holds surplus funds after a New Mexico foreclosure?

How surplus funds are handled depends on how the foreclosure was conducted. Many foreclosures in New Mexico are conducted through the district court (judicial foreclosure) and the sale is conducted by the county sheriff or court-appointed trustee. After the sale, any amount left over after paying liens and sale costs is treated as an overage or surplus. Those funds are usually held by the court clerk, the sheriff’s office, or the entity that conducted the sale until a proper claimant comes forward.

Step-by-step: How to claim surplus funds when the owner is deceased and no probate exists

1. Identify the sale record and the holder of surplus funds.
   • Find the foreclosure docket number and sale date in the district court where the foreclosure was filed or contact the county sheriff’s office where the sale occurred. Ask whether there were excess funds after the sale and which office holds them.
   • Obtain the sale report, final judgment, and any accounting showing the amount of surplus.
2. Determine legal authority you will need to collect funds.
   • If the decedent left a will and someone has been appointed personal representative (PR) by the court, that PR can claim the funds as estate property.
   • If no probate exists, you will usually need one of the following: a court appointment of an administrator or personal representative, a qualifying small‑estate affidavit (if New Mexico law offers a summary procedure for the asset at issue), or an affidavit of heirship/claim recognized by the court or holder of funds.
   • Who may claim: the executor or administrator, intestate heirs, or persons with written authority from the estate. Priority among creditors and lienholders may affect distribution.
3. Open probate or use a small‑estate/affidavit procedure.
   • If the estate’s only remaining asset to collect is a modest cash surplus, New Mexico provides less burdensome ways to collect small estate assets in many cases. If the surplus is significant or other estate issues exist, file for probate (appointment of a personal representative) in the district court for the county where the decedent lived or owned property.
   • After appointment, the PR receives letters testamentary or letters of administration which the PR can present to the holder of the surplus to get payment to the estate.
4. Document collection claim and file with the fund holder.
   • Prepare the required documents: certified death certificate, ID, certified copy of letters testamentary/administration (or small‑estate affidavit), an affidavit of heirship if applicable, and any court order or judgment showing the surplus amount.
   • Submit these documents and a formal written claim to the clerk of court, sheriff, or trustee holding the funds. If the holder requires a court order before disbursing, your attorney or the court can request an order directing payment to the estate or to named heirs.
5. If multiple heirs exist or competing claims arise.
   • Funds will typically be distributed according to the estate’s probated will or, if none, New Mexico intestacy rules. Disputes among heirs or creditors can require a court hearing to determine distribution.
6. Understand priority of liens and creditors.
   • Liens (senior mortgages, tax liens, judgment liens) are paid from the foreclosure proceeds in priority order. Only remaining money is “surplus.” Before accepting a surplus claim, the holder will verify that all lienholders and court‑approved costs were paid.
7. Time limits and practical deadlines.
   • Different offices may have deadlines to present claims to surplus funds. Also consider statute of limitations that could affect recovery of money owed to the decedent’s estate. Contact the court clerk or sheriff promptly once you learn of the surplus.

Key New Mexico resources and statutes

• New Mexico Courts — probate information and forms: https://www.nmcourts.gov
• New Mexico Legislature (NMSA / statutes) — for probate and intestacy statutes see the probate title (Title 45) and related chapters: https://www.nmlegis.gov

Note: specific statute numbers and local rules apply. If you need a precise statutory citation for a particular step (for example, small‑estate collection procedures or the method to claim surplus funds from a sheriff sale), a local attorney or the court clerk can point you to the exact NMSA sections and local rule.

When you should strongly consider hiring a New Mexico attorney

• Large surplus or competing creditor claims.
• Heirs disagree about distribution or heirs are difficult to locate.
• Title or lien questions (e.g., whether a lienholder was properly paid, or multiple foreclosures occurred).
• You are unfamiliar with opening probate or completing required affidavits.

Practical checklist (documents you will likely need)

• Certified death certificate for your parent.
• Certified copy of will (if any).
• Identification for the claimant(s).
• Proof of relationship (birth certificates, marriage certificate) or heirship affidavit.
• Letters testamentary or letters of administration (if probate is opened).
• Sale documents: foreclosure judgment, sheriff’s sale report, accounting showing surplus.
• Any communications from the sheriff, trustee, or court about the surplus funds.

Helpful Hints

• Act quickly: contact the court clerk and the sheriff’s office as soon as you learn of a foreclosure sale and possible surplus. Delays can make recovery harder.
• Document everything: get copies of the sale report, judgment, and any accounting that shows the surplus. Those documents are essential to proving the claim.
• If you find foreclosure sale paperwork but no surplus is listed, request a written accounting or file a motion with the court to compel an accounting.
• Use the New Mexico Courts website for probate forms and local clerk contact information: https://www.nmcourts.gov.
• If the surplus is small and there are no disputes, a simple affidavit or summary procedure may be adequate; confirm allowable thresholds and process with the court clerk or an attorney.
• Be prepared for administrative fees or court costs; these may be charged against recovered funds.
• If creditors claim portions of the surplus, expect a court‑supervised resolution to determine priority and distribution.

Final note (disclaimer)

This information is educational and general in nature and does not constitute legal advice. Laws and local court practices change. For guidance about your specific situation and help preparing probate papers or a surplus claim, consult a licensed attorney in New Mexico or contact the district court clerk where the foreclosure was handled.