Eligibility for Judgeship; Restrictions on Fiduciary Role

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  2. Georgia Code
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  4. Probate Courts
  5. General Provisions
  6. Eligibility for Judgeship; Restrictions on Fiduciary Role

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    1. Except as otherwise provided in subsection (c) of this Code section, no individual shall be eligible to offer for election to or hold the office of judge of the probate court unless the individual:
      1. Is a citizen of the United States;
      2. Is a resident of the county in which the individual seeks the office of judge of the probate court for at least two years prior to qualifying for election to the office and remains a resident of such county during the term of office;
      3. Is a registered voter;
      4. Has attained the age of 25 years prior to the date of qualifying for election to the office, but this subparagraph shall not apply to any individual who was holding the office of judge of the probate court on July 1, 1981;
      5. Has obtained a high school diploma or its recognized equivalent; and
      6. Has not been convicted of a felony offense or any offense involving moral turpitude contrary to the laws of this state, any other state, or the United States.
    2. Each individual offering as a candidate for the office of judge of the probate court shall file an affidavit with the officer before whom such individual has qualified to seek the office of judge of the probate court prior to or at the time of qualifying as a candidate. The affidavit shall affirm that the individual meets all the qualifications required by subparagraphs (A), (C), (D), (E), and (F) of paragraph (1) of this subsection and either subparagraph (B) of paragraph (1) of this subsection or subsection (c) of this Code section.
  2. The judge of the probate court shall not, during his or her term of office, be executor, administrator, or guardian, or other agent of a fiduciary nature required to account to his or her court. When any individual holding such trust is elected judge of the probate court, his or her letters and powers immediately abate upon his or her qualification. However, a judge of the probate court may be an administrator, guardian, or executor in a case where the jurisdiction belongs to another county or in a special case when he or she is allowed by law and required to account to the judge of the probate court of another county.
  3. In all counties of this state which have a population of 550,000 or more according to the United States decennial census of 1980 or any future such census, a chief deputy clerk of the probate court having served as chief deputy clerk for more than two years shall be eligible to fill a vacancy in the office of probate judge for the remainder of the unexpired term without regard to whether such chief deputy clerk meets any residency requirements otherwise imposed by law if the chief deputy clerk becomes a resident of the county before taking office as probate judge. Any probate judge taking office as authorized by the preceding sentence shall thereafter be eligible to succeed himself or herself so long as he or she remains a resident of the county.

(Ga. L. 1851-52, p. 91, § 5; Code 1863, §§ 302, 303; Code 1868, §§ 362, 363; Code 1873, §§ 327, 328; Code 1882, §§ 327, 328; Civil Code 1895, §§ 4228, 4229; Civil Code 1910, §§ 4786, 4787; Code 1933, § 24-1711; Ga. L. 1983, p. 544, § 2; Ga. L. 1984, p. 22, § 15; Ga. L. 1985, p. 1247, § 1; Ga. L. 1989, p. 1091, § 2; Ga. L. 2018, p. 356, § 1-2/SB 436.)

The 2018 amendment, effective July 1, 2018, substituted "individual" for "person" throughout this Code section; in subsection (b), inserted "or her" throughout, substituted "shall not" for "cannot" near the middle of the first sentence, and substituted "when he or she" for "where he" in the third sentence.

Law reviews.

- For article, "The Selection and Tenure of Judges," see 2 Ga. St. B. J. 281 (1966).

JUDICIAL DECISIONS

Residence requirement.

- Although party seeking the office of judge of the probate court, during a portion of the two-year period prior to qualifying for election, lived in another county while serving in the army and applied for and received a homestead exemption for the party's residence there, the party did not intend to change the party's domicile since the party did not cancel the homestead exemption for the party's residence in the county where the party sought election and canceled the homestead exemption claimed in the later county and paid the taxes that were owed on the nonexempt residence. Johnson v. Byrd, 263 Ga. 173, 429 S.E.2d 923 (1993).

Probate judge cannot act as executor in county serving.

- This section denies an ordinary (now probate judge) the right to act as executor in the county where the person is an ordinary (now probate judge). Wilson v. Wilson, 139 Ga. 771, 78 S.E. 41 (1913).

Appointment of such officer as executor is null and void. Marshall v. Walker, 47 Ga. App. 195, 170 S.E. 267 (1933).

OPINIONS OF THE ATTORNEY GENERAL

Qualifications for probate judge.

- For a person to be eligible to hold the office of judge of the probate court there must not only be a full compliance of the constitutional and statutory residency requirements but also the person must meet the requirements of a qualified voter. 1967 Op. Att'y Gen. No. 67-368.

RESEARCH REFERENCES

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judges, § 5.

C.J.S.

- 48A C.J.S., Judges, § 110.

ALR.

- Validity and construction of constitutional or statutory provisions making legal knowledge or experience a condition of eligibility for judicial office, 71 A.L.R.3d 498.


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