2021 Georgia Code
Title 15 - Courts
Chapter 9 - Probate Courts
Article 2 - Jurisdiction, Power, and Duties
§ 15-9-36. Judges of Probate Courts as Clerks Thereof; Chief Clerk; Powers of Clerks; Uncontested Matters; Oaths

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. Any individual appointed as chief clerk shall take the oath provided for under subsection (d) of this Code section.
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.
3. 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 and shall take the oath provided for under subsection (d) of this Code section.
   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.
4. 1. Any individual appointed as chief clerk or as a designated clerk under paragraph (1) of subsection (c) of this Code section shall take the oath required of all civil officers and, in addition, the following oath:
   2. The oath provided for under paragraph (1) of this subsection shall be taken by such individual prior to discharging of his or her duties, shall be administered by the judge of the probate court, and, the taking of which, shall be recorded in the minutes of the probate court.

"I do swear that I will well and faithfully discharge the duties of (chief clerk or designated clerk) of the probate court for the County of ______________, during my continuance in office, according to law, to the best of my knowledge and ability, without favor or affection to any party. So help me God."

(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; Ga. L. 2021, p. 318, § 1/HB 97.)

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.

The 2021 amendment, effective July 1, 2021, added the third sentence in subsection (a); added "and shall take the oath provided for under subsection (d) of this Code section" at the end of paragraph (c)(1); and added subsection (d).

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

- 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.

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

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).

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.

- 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.

- 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.

- 48A C.J.S., Judges, § 65.