Reasons a case may need to be transferred to district court by the probate judge include:

• Conflict of interest;
• Upon the petition of an interested party, see Section 34-7-9, also see 45-1-303C;
• Conflicts that have arisen between the parties;
• Guardianship and trust issues;
• Determination of the validity of claims against the estate;
• Dispute over creditor's claim;
• Dispute over validity of a will;
• The removal of a personal representative for cause; and
• The need for a formal closing.

Note: Usually, the payment of a district court filing fee is required before the case is transferred; however, in some circumstances, the probate judge can ask that the district court waive payment of the filing fee.

In a case where the transfer is initiated in the probate court with an Order of the probate judge:

• Probate judge signs Order transferring the case to district court
• The original Order goes in the case file.
• The Clerk delivers an endorsed-filed certified copy of the Order for Transfer, along with the entire probate file (excluding the original Transfer Order) to the district court. The probate court should retain a copy of the will, if any, for its records.
• The Clerk also prepares and delivers the original and one copy of a Transfer Memorandum to the district court. The Transfer Memorandum is set up like a pleading. In it the Clerk of the Probate Court certifies that the original documents were delivered to the district court on ____ date. The Transfer Memorandum sets out the title of each pleading being delivered, and the date it was filed with the probate court. The Clerk or Deputy Clerk signs and dates the Memorandum, and affixes the Court seal.
• The District Court Clerk opens a new file (case) with the original Transfer Memorandum and attached pleadings filed as one document.
• The district court clerk returns an endorsed-filed copy to the County Clerk (or Deputy Clerk) that includes a certification that the district court received the documents. (This is your proof that the documents were actually transferred, and is a record of what was done for anyone who looks at the case in the future.)
• The certified copy of the Transfer Memorandum is then file-stamped by the probate court clerk and placed in the probate court file.
• The document sheet and the Index should reflect that the case was transferred to district court as Case #______ and on what date.

Sometimes a transfer is initiated by the personal representative or other interested person in the district court with the filing of a Petition. In that case, once the probate court has received a certified copy of the Order transferring the case, the probate court clerk files the Order and proceeds as set out above.

Note: The need to transfer a case to another probate court can also arise. The same procedure should be followed to ensure continuity of your records.

Reports to District Court
As a probate judge, you should be aware of this requirement, even if you do not personally deal with it.

1-095 B. NMRA requires that "…. at the time an informal probate proceeding is filed the probate court shall advise the clerk of the district court in writing of the style of the case and the names and addresses of the party filing the initial pleading and his attorney, if any. Upon the appointment of a personal representative in an informal proceeding, the probate court shall advise the clerk of the district court in writing of the names and addresses of the personal representative and his attorney, if any. When the informal probate proceeding is closed, the probate court shall furnish to the clerk of the district court a copy of the docket sheet for said proceeding showing all entries. The district court shall retain such information as part of its records."

1-095 C. NMRA further requires that "...after furnishing the docket sheet, the probate court shall promptly upon the filing of any document with the probate court, cause to be furnished to the clerk of the district court notice of the type of document so filed and the date of filing. If any such document shall evidence the appointment of a personal representative or any change in the name or address of a personal representative, the notice shall include the name and address of the personal representative, or any change therein. The district court shall enter such information on its copy of the appropriate docket sheet."

The Bernalillo County Probate Court currently sends a monthly report to the Second Judicial District Court that includes a cover sheet with the following attached documents:

• Copies of the docket sheets for each case filed in the previous month
• Copy of the daily worksheet for that month.
• Copies of the docket sheets for cases where a Verified Statement (which closes the case) or Certificate of the Court was filed.

Note: Depending on your caseload, you may want to file your reports as soon as a case is opened. Check with the district court in your county regarding what procedure to follow.

Methods of Transfer
There are three ways to transfer a Probate Court case to the District Court:

1. The Probate Court initiates the transfer upon its own motion
2. The Probate Court initiates the transfer upon the motion of an interested person
3. An interested person files a petition wth the District Court (this way the party pays the filing fee at the time the petition is filed). We transfer the case upon receipt of a Certified Copy of the Order transferring the case.

The general rule is that the District Court filing fee must be paid before the case can be transferred to the District Court (see Rule 1-095(E)). A March 1996 version of the District Court Administrative Procedures Manual, Chapter 4 on fees, states in Section 4.3-4: "Note: If an attorney files a petition for trnasfer from probate court, a filing fee is accessed [sic]. If the case is transferred by the probate judge on his/her own order, no fee is required. [emphasis added]." However, we have been unable to confirm with the Second Judicial District Court whether this waiver of fee is still in effect. Probate judges might check wth their own district courts about whether this rule applies in their district.

The most comprehensive way to transfer a case to District Court is through the use of a Transfer Memorandum or similar document. The Transfer Memorandum should state "upon the order of the Probate/District Court, filed on [date] the Probate Court hereby transferes the following documents to the District Court." You then list each document and the date it was filed with the Probate Court. You should make an extra copy of the Memorandum, which includes a Certification of Receipt, i.e. the District Court certifies that they have received the documents listed on the Memorandum. (This document will be file-stamped and placed in your probate file for the case.) After you receive a certified copy of the transfer memorandum back from District, you should indicate that the case has been transferred to District Court "as Case # ..." on your docket sheet for that probate case and in your index.