Detailed answer — steps to file a motion to determine your right to surplus funds

If a lender foreclosed on your mom’s property and a sale produced money in excess of what the lender was owed, those excess funds (“surplus proceeds”) may belong to the mortgagor, the mortgagor’s estate, or other lienholders. In Virginia, the usual path to recover surplus funds is to file a petition or motion in the circuit court where the foreclosure sale was conducted or where the deed is recorded. Below are the practical, step-by-step actions and the documents you typically need.

1. Confirm whether a surplus exists and who holds it

• Request the foreclosure sale accounting or report from the trustee or the purchaser. The trustee’s report or the clerk’s file will show the sale price, amounts paid to satisfy the lien(s), and any surplus amount.
• Check the deed records where the property is located and the circuit court foreclosure docket entries. The circuit court clerk’s office can tell you whether the sale was confirmed and whether funds were deposited with the court or remain with the trustee.
• If the foreclosure was nonjudicial (trustee’s sale), the trustee or purchaser often deposits surplus with the clerk or prepares a distribution. If the sale was judicial, the clerk’s distribution order will show surplus handling. For background on Virginia property law and foreclosure procedures see Virginia Code, Title 55.1 (Property and Conveyances): https://law.lis.virginia.gov/vacode/title55.1/

2. Determine who has the legal right to the surplus

• If your mom is deceased, the surplus is an asset of her estate. Whoever is entitled to act for the estate (executor, personal representative, or heirs) must claim it. For Virginia probate and estate rules see Title 64.2 (Wills, Trusts, and Decedents’ Estates): https://law.lis.virginia.gov/vacode/title64.2/
• If there are other lienholders (tax liens, junior mortgages), they may have prior claims. Their claims show up in the foreclosure accounting or in the land records.
• If no estate has been opened and the amount is small, you may need to open a probate estate or seek authority through a small-estate or summary probate procedure before the court will release funds to you.

3. Assemble documents you will need

Be prepared to submit documents with your motion or petition. Typical items include:

• Certified copy of your mom’s death certificate.
• If available, will and any letters testamentary or letters of administration showing who may act for the estate. If no letters exist, an affidavit of heirship or other proof of heir status may be required.
• Photo ID for the person claiming the funds and proof of relationship to the decedent (birth certificate, family records) if you are an heir.
• Copies of the foreclosure sale documentation: trustee’s deed or deed of sale, sale accounting, clerk’s order confirming sale, and any notice of deposit of surplus.
• Records of other liens or claims against the property (recorded liens, tax bills) if you know them.

4. Prepare and file the petition or motion in the correct court

File in the circuit court for the county or city where the property is located. The pleading is often titled something like “Petition to Determine Right to Surplus Proceeds” or “Petition for Payment of Surplus Proceeds.” Typical content:

• Court caption and case number for the foreclosure file (if there is one).
• Short statement of facts: mortgage/deed of trust, foreclosure sale date, sale price, amounts applied to liens, and the existence/amount of surplus.
• Your legal basis for claiming the funds (e.g., decedent’s estate, heirship, lack of other superior claims).
• Request for the court to determine prevailing entitlement and to order disbursement of surplus funds to you or to the estate representative.
• Supporting affidavits and attachments (death certificate, letters, trustee report, ID).
• Certificate of service showing whom you notified (trustee, purchaser, known lienholders and heirs).

5. Serve interested parties and attend any hearing

• Virginia courts will require service on parties with a known interest — typically the trustee, the foreclosure purchaser, and any recorded lienholders. The clerk can tell you local service rules.
• The court may schedule a hearing. Bring originals of documents and copies for the judge and opposing parties. Be ready to explain your relationship to the decedent and why you are the proper recipient of the funds.

6. If you are required to administer an estate

If your mom’s estate is not already being administered, the court may require letters testamentary or letters of administration before releasing surplus funds. To start probate, contact the clerk of the circuit court handling probate in the decedent’s residence county or city. Information on Virginia circuit courts is at: https://www.courts.state.va.us/courts/circuit.html

7. What if the court does not release funds to you?

If the court determines someone else has priority (another creditor or the estate’s administrator), you may need to pursue a separate probate petition or file an appeal from the order. Time limits and appellate rules apply, so act promptly.

Key legal resources and forms

• Virginia Code, Title 55.1 (Property and Conveyances): https://law.lis.virginia.gov/vacode/title55.1/
• Virginia Code, Title 64.2 (Wills, Trusts, Decedents’ Estates): https://law.lis.virginia.gov/vacode/title64.2/
• Virginia Judicial System — Circuit Courts (clerk contacts, local filing rules): https://www.courts.state.va.us/courts/circuit.html

Because local practice and pleading requirements vary by circuit, contact the circuit court clerk where the property is located and ask what the clerk needs to accept and calendar a petition to determine surplus proceeds.

Helpful Hints

• Act quickly. Even when there is surplus, other creditors or an executor can claim those funds, and delays complicate retrieval.
• Start with the trustee and the circuit court clerk. The trustee’s accounting and the clerk’s docket typically show whether funds were deposited and where to file a claim.
• If your mom died and you are not the appointed representative, you may need to open probate or obtain letters before the court will release funds to you.
• Collect and organize documents first: death certificate, will, letters, IDs, and the foreclosure sale paperwork. Courts prefer complete packets at filing.
• Serve all likely claimants. Failure to notify known lienholders or interested heirs can delay or invalidate an order.
• Ask the clerk about local form names. Some circuits have standard forms or local instructions for petitions about surplus funds.
• Consider limited help from an attorney for drafting the petition or attending the hearing if you face competing claims. Even a single consultation can clarify what the court expects.
• Keep copies of everything you file and proof of service. The court will require proof you notified interested parties.