Who Gets Surplus Money After a Foreclosure in Wisconsin — and How to File a Motion to Get It

Short answer: If a foreclosure sale produced funds in excess of the amounts owed to the lender and those with higher priority, the former owner (or anyone with a later lien or claim) can ask the circuit court that handled the foreclosure to determine who is entitled to the surplus and order payment. In Wisconsin you do this by filing a motion (sometimes called a “motion to determine entitlement to surplus proceeds” or similar) in the foreclosure case, supported by documents proving your right to the money. If the homeowner is deceased, a personal representative or other person with legal authority must make the claim.

Detailed answer — step‑by‑step (Wisconsin)

1. Understand what a “surplus” is

When a sheriff’s sale or judicial foreclosure produces more money than required to pay the foreclosing creditor(s) and costs, the extra money is called surplus proceeds. Wisconsin law and court procedure require the court to distribute sale proceeds according to lien priority. If there is a surplus after higher‑priority claims are paid, the surplus belongs to the persons or entities with valid remaining claims — typically junior lienholders, and if none, the former owner or the owner’s estate.

2. Identify where the surplus money is held and the controlling case

Surplus funds will generally be held by the sheriff, the clerk of circuit court, or by the purchaser’s escrow depending on local practice and the court’s order in the foreclosure case. Find the foreclosure case number and the county circuit court that handled the foreclosure. You will file your motion in that same foreclosure case.

3. Check the foreclosure court file and confirm the surplus amount

Look in the circuit court record for the foreclosure judgment, the sale confirmation, and the certificate or report showing proceeds from the sale. The court’s file or the sheriff’s office should show whether there is a reported surplus and the amount.

4. Determine who can claim the surplus

• Former owner(s) of record: typically first in line for surplus only after all lienholders and costs are satisfied.
• Junior lienholders (judgments, tax liens, second mortgages): they may have priority over the owner for part or all of the surplus.
• If the former owner is deceased: the right to the surplus passes to the estate. A personal representative, administrator, or someone with letters testamentary/administration or other court authority should make the claim. If no probate exists, a prospective claimant may need to open a probate or obtain a court order recognizing heirs.

5. Prepare the motion and supporting documents

The motion should ask the circuit court to determine entitlement to the surplus proceeds and to order the clerk/sheriff to pay the funds to you (or to someone you represent). Typical components:

1. Caption identifying the foreclosure case (court, case number, parties).
2. Title: e.g., “Motion to Determine Entitlement to Surplus Proceeds.”
3. Statement of facts: cite the judgment of foreclosure, date of sale, amount of sale proceeds, and the reported surplus amount.
4. Legal basis for your claim: your relationship to the property (record owner, heir, personal representative) and any recorded liens or documents supporting your claim.
5. Exhibits: deed or title documents, certified death certificate (if owner is deceased), letters testamentary/administration or other proof of authority to act for the estate, lien instruments, the sheriff’s sale report, and any court records showing the surplus amount.
6. Proposed order for the judge to sign directing payment of the surplus to you (or where to send payment), and any direction about withholding costs or attorney fees if applicable.

6. File the motion in the correct circuit court and pay any filing fee

File the motion and supporting documents with the clerk of the circuit court that handled the foreclosure. Some counties post local rules or require specific forms — check the county clerk’s instructions or the circuit court’s website. If you are claiming as a representative of an estate, file proof of your authority (letters). If the court requires a cover letter or a proposed order, include them.

7. Serve the motion on interested parties

You must serve copies of the motion, exhibits, and proposed order on all parties who might have an interest in the surplus. That typically includes the foreclosing lender or its attorney, any junior lienholders shown in the record, the purchaser at the sale, and the sheriff (if the sheriff is holding funds). Follow Wisconsin rules and the court’s local rules for service; file proof of service with the court.

8. Attend a hearing if the court schedules one

The court may set a hearing. Be prepared to present the key evidence electronically or in person: identity/ownership records, probate letters (if applicable), and documents showing there is a surplus and why you are entitled to it. If other claimants appear, the judge will decide priorities based on recorded liens, statutes, and equitable considerations.

9. If the owner died: special considerations

If your mom is deceased, an individual usually must show authority to claim money on behalf of her estate. That means one of the following is often required:

• Letters testamentary or letters of administration issued by the probate court; or
• A small‑estate affidavit or other recognized statutory short‑form procedure if available and applicable; or
• A court order in the probate case authorizing distribution of the surplus.

If no probate case has been opened and the potential surplus is substantial, opening a probate estate (or at least obtaining letters) is commonly required so the court can determine who the heirs are and who has authority to collect estate assets.

10. Court order and payment

If the judge finds in your favor, the court will sign an order directing whoever holds the funds (clerk, sheriff, purchaser) to pay the sum to you or to the estate’s account. There may be administrative steps before funds are released (e.g., disbursement checks, signing receipts).

11. If there is disagreement or competing claimants

If other parties file competing claims, the court will determine priority by looking at recorded liens, the foreclosure judgment, and statutory priority rules. You may need to present evidence and may want to consider hiring a lawyer to argue priority questions and resolve disputes.

Key Wisconsin statutory reference

Foreclosure procedure and distribution of sale proceeds are addressed in Wisconsin statutes governing actions affecting property and judgments. See Wisconsin Statutes, ch. 846 (judicial foreclosure and related provisions): https://docs.legis.wisconsin.gov/statutes/statutes/846. The circuit court rules and local procedures also control filing, service, and hearings.

Helpful hints

• Act quickly. Don’t delay — records get archived and competing claimants can appear.
• Start at the clerk’s office. The county circuit court clerk and the sheriff’s office can often tell you whether surplus funds exist and which case to file in.
• Gather proof of authority. If the homeowner is deceased, bring the death certificate and any probate documents (letters testamentary or administration). If you’re an heir but not the personal representative, you may need a court order or to be appointed by the probate court.
• Include documented chain of title. Provide the deed or recorded title showing the person’s ownership at time of foreclosure.
• Serve everyone. Serve the lender (and its counsel), the purchaser at the sale, the sheriff, and any recorded junior lienholders. File proof of service with the court.
• Be prepared for disputes over priorities. Junior lienholders (judgments, tax liens, second mortgages) may have stronger claims than the former owner for part or all of the surplus.
• Follow local court rules and use the clerk’s forms if they exist. Some counties provide sample forms or require a specific format for motions and proposed orders.
• Consider legal help. If the surplus is large, ownership is unclear, or there are competing claimants, consult an attorney experienced in Wisconsin foreclosure and probate matters.

Where to look for forms and more information

Wisconsin circuit court information and forms: https://www.wicourts.gov. For statutes and chapter references, start with: Wis. Stat. ch. 846 (foreclosure and sale procedures).

When to get an attorney

If the estate is involved, competing creditors exist, or if the facts are complicated (multiple recorded liens, assignments, unclear title, or disputes among heirs), hiring a lawyer who practices in Wisconsin foreclosure and probate law will protect your rights and help you navigate court procedure and timing.

Disclaimer: I am not a lawyer and this is not legal advice. This article explains general information about Wisconsin procedure for claiming surplus proceeds after a foreclosure. Your facts may change the result. For advice specific to your situation, contact a licensed attorney in Wisconsin.