Judges of Probate Courts as Clerks Thereof; Chief Clerk; Powers of Clerks; Uncontested Matters

  1. Law
  2. Georgia Code
  3. Courts
  4. Probate Courts
  5. Jurisdiction, Power, and Duties
  6. Judges of Probate Courts as Clerks Thereof; Chief Clerk; Powers of Clerks; Uncontested Matters

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  1. The judges of the probate courts are, by virtue of their offices, clerks of their own courts; but they may appoint one or more clerks, for whose conduct they are responsible, who hold their offices at the pleasure of the judge. The judges of the probate courts shall also have the authority to appoint one of their clerks as chief clerk of the probate judge unless otherwise provided by local law.
  2. The appointed clerks, including the chief clerk of the probate judge, may do all acts the judges of the probate courts could do which are not judicial in their nature. The chief clerk of the probate judge shall also have the authority prescribed in Code Section 15-9-10.
    1. In addition to other powers granted to appointed clerks, the chief clerk of the probate judge or, if there is no chief clerk, a clerk designated by the judge may exercise all the jurisdiction of the judge of the probate court concerning uncontested matters in the probate court. Such clerk may exercise such power regardless of whether the judge of the probate court is present.
    2. The powers granted by paragraph (1) of this subsection shall be exercised only by a chief clerk or designated clerk who has been a member of the State Bar of Georgia for at least three years or has been a clerk in the probate court for at least five years.

(Ga. L. 1851-52, p. 50, § 1; Code 1863, §§ 313, 314; Code 1868, §§ 374, 375; Code 1873, §§ 341, 342; Code 1882, §§ 341, 342; Civil Code 1895, §§ 4247, 4248; Civil Code 1910, §§ 4805, 4806; Code 1933, §§ 24-1801, 24-1802; Ga. L. 1978, p. 891, § 2; Ga. L. 1986, p. 1581, § 3; Ga. L. 1987, p. 524, § 1; Ga. L. 1988, p. 586, § 2; Ga. L. 1991, p. 394, § 5; Ga. L. 1994, p. 1665, § 3; Ga. L. 2012, p. 683, § 2/HB 534; Ga. L. 2014, p. 395, § 1/SB 341; Ga. L. 2018, p. 356, § 1-20/SB 436.)

The 2018 amendment, effective July 1, 2018, in subsection (b), deleted "and may act for judges of the probate courts in those cases in which they are authorized to act for the judge by Code Section 15-9-13" following "nature" at the end of the first sentence, and substituted "15-9-10" for "15-9-11.1" at the end of the second sentence.

Cross references.

- Appointment of judge of probate court as clerk of superior court, § 15-6-55.

Editor's notes.

- Ga. L. 1988, p. 586, § 7, not codified by the General Assembly, provided that the amendment to this Code section applied to any vacancy occurring on or after March 30, 1988.

Law reviews.

- For note on 1991 amendment of this Code section, see 8 Ga. St. U.L. Rev. 212 (1992).

JUDICIAL DECISIONS

Cited in Smith v. Stapler, 53 Ga. 300 (1874); Lay v. Sheppard, 112 Ga. 111, 37 S.E. 132 (1900); Weeks v. Hosch Lumber Co., 133 Ga. 472, 66 S.E. 168, 134 Am. St. R. 213 (1909); Head v. Waldrup, 193 Ga. 165, 17 S.E.2d 585 (1941); Cooper v. Lunsford, 203 Ga. 166, 45 S.E.2d 395 (1947); Tucker v. American Sur. Co., 191 F.2d 959 (5th Cir. 1951); Castleberry v. Horne, 220 Ga. 691, 141 S.E.2d 394 (1965); Taylor v. Young, 253 Ga. App. 585, 560 S.E.2d 40 (2002).

OPINIONS OF THE ATTORNEY GENERAL

Clerk of probate court judge is not employee of county, but is solely the employee of the judge of the probate court, who personally is on a fee system as an independent officer, and any compensation paid the clerk is paid from any fees that the judge may derive from performing the judge's duties. 1958-59 Op. Att'y Gen. p. 232.

Probate judge not entitled to fees for services as clerk.

- No fees are provided for clerks of the court of the ordinary (now probate judge), but the clerk's appointment is at the judge's expense and, therefore, the judge of probate court, as ex-officio clerk, is not entitled to fees for any services rendered as clerk. 1945-47 Op. Att'y Gen. p. 83.

Special authorization for employment of clerks at county expense.

- Some "population acts" authorize judges of the probate court in counties within a specified population range to employ clerks at county expense with the approval of the grand jury and county governing authorities. 1969 Op. Att'y Gen. No. 69-10.

RESEARCH REFERENCES

Am. Jur. 2d.

- 46 Am. Jur. 2d, Judges, § 26.

C.J.S.

- 48A C.J.S., Judges, § 65.


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