Special cases, scams and your claim checklist

Bottom line first. Most surplus claims are simple: the person on the mortgage asks the public trustee, then the state treasurer, for free. A few situations add steps: the owner died, there was a divorce, or there was a bankruptcy. For the first, Colorado law gives clear tools. For the last two, the sources we read say very little, so this lesson says so plainly and tells you who to ask. If this is about someone you lost, we are sorry. Take it one phone call at a time.

If the owner has died

The state's unclaimed property law defines an owner as a person with a legal, beneficial or equitable interest in the property, or that person's legal representative acting for them (C.R.S. 38-13-102). A personal representative is the person a court names to handle a dead person's estate. Heirs (people who inherit) usually act through a personal representative, or, for small estates, through an affidavit. Who counts as an heir is covered in /courses/inherited-house/.

The small-estate affidavit. Colorado lets a successor collect some property without opening a court case. At least ten days after the death, a person who owes the dead person money, or holds the dead person's personal property, must pay or deliver it to a person claiming to be a successor, when shown an affidavit (a written statement signed under oath) saying (C.R.S. 15-12-1201(1)):

• the estate's value, less liens, does not exceed twice the amount in C.R.S. 15-11-403 as adjusted;
• at least ten days have passed since the death;
• no application or petition for a personal representative is pending or granted anywhere; and
• each person is entitled to the property as the affidavit says.

The dollar limit changes over time and is not in the sources we read, so look up the current figure on the court's form or ask the court clerk. A person who refuses to pay without reasonable cause can be made to pay the costs, including reasonable attorney fees, of the people entitled (C.R.S. 15-12-1202(3)). The person who uses the affidavit owes the same duties as an agent, and must answer to a personal representative or anyone with a better right (C.R.S. 15-12-1201(4); 15-12-1202(4)).

A question for the office holding the money. The sources do not say whether the public trustee or the state treasurer must accept this affidavit for a foreclosure overbid. Ask each office what proof it wants from heirs. The state treasurer must tell you the reason for a denial and what extra evidence would fix it (C.R.S. 38-13-904(2)(a)).

If an estate is larger than the affidavit limit, or heirs disagree, ask the probate court clerk or a lawyer about being named personal representative.

If there was a divorce

The public trustee pays the leftover overbid to "the borrower" (C.R.S. 38-38-111(2)), and the statute defines borrower as a person or entity liable under the evidence of debt for the mortgage loan (C.R.S. 38-38-111(6)). The sources do not say how a divorce decree divides a surplus, or how two borrowers share one. Bring the divorce decree and the loan papers and ask the public trustee, then a lawyer or the court that handled the divorce. We will not guess.

If there was a bankruptcy

What the sources do say is about the sale itself. A bankruptcy filing can automatically stay (stop) a public trustee from holding the sale, and the sale can be continued week to week or withdrawn depending on what happens to the case (C.R.S. 38-38-109(2)). A sale held in violation of the stay can later be affected by a bankruptcy court order (same section). The sources do not say who owns surplus money when a bankruptcy was involved. Ask your bankruptcy lawyer or the bankruptcy trustee before you claim or sign anything.

Scams and free routes

Remember the order from the last lesson. Nobody can enforce a fee for helping you claim from the public trustee (C.R.S. 38-38-111(2.5)(c)). After the transfer, a finder deal only works after two years, with a written agreement, and with a pay cap of 10 percent of the overbid (HB25-1224, 2025; C.R.S. 38-13-1304). Beware of anyone who wants an upfront fee, a deed or a power of attorney, or who makes you feel rushed.

Free routes, in order:

1. The public trustee in the county of the sale. The unclaimed overbid is held for six months from the date of the sale, and the trustee answers for it without interest within that time to anyone legally entitled (C.R.S. 38-38-111(3)(a)(II)). For overbids over $500 not claimed within sixty days after the redemption periods end, the trustee must start a newspaper notice within ninety days after they end, and also mail a copy to the borrower (C.R.S. 38-38-111(3)(b)).
2. The state treasurer's unclaimed property office, after the six months, for overbids of $25 or more (C.R.S. 38-13-214). Make a claim on the form the treasurer prescribes (C.R.S. 38-13-903). The treasurer must decide within ninety days. If it does nothing in ninety days, the claim is treated as denied (C.R.S. 38-13-904). An allowed claim is paid within thirty days (C.R.S. 38-13-905(1)). If denied, you may sue in Denver district court within one year after filing (C.R.S. 38-13-906).

One caution: before the treasurer pays, it first applies the money to certain debts you owe state agencies, and tells you (C.R.S. 38-13-905(2)).

Your claim checklist

1. Write down the county, the property address, the sale date and the borrower names on the loan.
2. Call the public trustee and ask if an overbid was left. Ask for any deadline in writing.
3. If the six months have passed, search and file with the state treasurer's unclaimed property office. Keep copies of everything you send.
4. If the owner died, ask each office what proof of heirship it needs, and look into the small-estate affidavit or a personal representative.
5. If a divorce or bankruptcy is involved, ask a lawyer or the court before you file.
6. Before you sign with any finder, check the date, the 10 percent cap, the five required items and whether the paper says the claim is free.
7. Write down every date, name and answer. Calendar the one-year lawsuit deadline if you are denied.

Example with real numbers

Marcus died after his house sold at foreclosure on March 1. The overbid left for him was $25,000. His daughter Priya has the death certificate.

1. Six months from March 1 is September 1. Before then, Priya can ask the public trustee and ask what proof is needed (C.R.S. 38-38-111(3)(a)(II)).
2. She misses that date. The $25,000 is above the $25 line, so it moves to the state treasurer (C.R.S. 38-13-214).
3. On October 1, Priya files a claim on the treasurer's form (C.R.S. 38-13-903).
4. Ninety days after October 1 is December 30. By then the treasurer must allow or deny the claim, or it is deemed denied (C.R.S. 38-13-904).
5. Say the claim is allowed on December 1. Payment is due within thirty days, by December 31 (C.R.S. 38-13-905(1)).
6. Say instead it was denied on December 1 and she cannot fix it. She has until one year after the October 1 filing, which is the next October 1, to sue (C.R.S. 38-13-906).
7. A finder calls in November, a few months after the transfer, and asks for 20 percent, which is $5,000. That is under two years, so the agreement is not enforceable (C.R.S. 38-13-1304(1)(a)), and it is also double the 10 percent cap, which would be $2,500 on $25,000 (HB25-1224, 2025). Priya hangs up and keeps going.