TITLE 15 COURTS

Section 9. Probate Courts, 15-9-1 through 15-9-158.

ARTICLE 2 JURISDICTION, POWER, AND DUTIES

15-9-37. Duties of clerks or probate judges acting as clerks; storage of records for retrieval from automated or computerized record-keeping method or system; installation and use of photostatic equipment or other photographic equipment for recording documents.

It is the duty of clerks of the probate courts, or the judges of the probate courts acting as such:
1. To issue all citations required by law and to administer all oaths incident to the business of the court;
2. To grant temporary letters of administration;
3. To grant marriage licenses;
4. To issue all writs of fieri facias for costs on all judgments of the judge or other process necessary to enforce them;
5. To issue subpoenas for witnesses and all similar process in connection with a trial;
6. To issue any paper or process by order of the judge and bearing teste in his name;
7. To keep fair and regular minutes of each session of the court entered in a suitable book and perform such other services as the judge may require; but any minutes, dockets, or other records required to be kept as records of the probate court under this paragraph or paragraph (8) of this subsection or under any other law may be combined into one or more suitable books, as the ends of justice require, but in any case shall be indexed, permanent, economical, and accessible to the public;
8. To keep in their offices a suitable book for each of the following purposes:
  1. Record of wills;
  2. Record of all letters of administration and guardianship;
  3. Record of all bonds given by administrators and guardians;
  4. Record of all appraisements, inventories, and schedules;
  5. Record of all accounts of sales;
  6. Record of all current accounts authorized to be made to the judge, together with the vouchers accompanying the same;
  7. Record of all marriage licenses and the returns thereon;
  8. Record of all official bonds required to be recorded in the office of the judge; and
  9. Docket in which to enter all applications and other proceedings, in the order they are made, which shall be called in like order at each session;
9. To procure and preserve for public inspection a complete file of all newspaper issues in which their advertisements actually appear;
10. To keep their books and papers arranged, filed, labeled, and indexed, as clerks are required to do;
11. To give transcripts likewise as clerks are required to do, and when the judge of the probate court and the clerk are the same person, so to state in the certificates;
12. To keep and maintain facilities for the filing of wills of persons who are still alive; and
13. To perform any other duty required of them by law or which is indispensable to those required.
Nothing in this Code section shall restrict or otherwise prohibit a clerk or a probate judge acting as such from electing to store for computer retrieval any or all records, dockets, indices, or files; nor shall a clerk or a probate judge acting as such be prohibited from combining or consolidating any books, dockets, files, or indices in connection with the filing for record of papers of the kind specified in this Code section or any other law, provided that any automated or computerized record-keeping method or system shall provide for the systematic and safe preservation and retrieval of all books, dockets, records, or indices.When the clerk or a probate judge acting as such elects to store for computer retrieval any or all records, the same data elements used in a manual system shall be used, and the same integrity and security maintained.
The judge of the probate court or any other authority performing the functions required to be performed by such judge or by the probate court in any county of this state shall be authorized to install and to use photostatic equipment or other photographic equipment for recording any documents authorized or required to be recorded in the office of the judge or of the probate court or for recording and preserving the minutes of the court. Such equipment may be installed and used by the judge or by the probate court for the same purposes and in lieu of the commonly used method of printing, typing, and handwriting the documents, records, and minutes. Such equipment may be provided or its use permitted by the proper county authorities. The authority given by this subsection for the installation and use of photostatic and photographic equipment is permissive only.

(Orig. Code 1863, § 316; Code 1868, § 377; Code 1873, § 344; Ga. L. 1882-83, p. 70, § 1; Code 1882, § 344; Civil Code 1895, § 4250; Civil Code 1910, § 4808; Code 1933, § 24-1804; Ga. L. 1958, p. 354, § 1; Ga. L. 1974, p. 383, § 1; Ga. L. 1982, p. 1617, §§ 1, 2; Ga. L. 1983, p. 3, § 12; Ga. L. 1991, p. 1753, § 1; Ga. L. 1992, p. 6, § 15; Ga. L. 2018, p. 356, § 1-21/SB 436.)

The 2018 amendment, effective July 1, 2018, added subsection (c).

Law reviews.

- For article, "Pitfalls in Probate Practice and Procedure," see 21 Ga. B. J. 169 (1958).

JUDICIAL DECISIONS

Probate judge acts as clerk when performing ministerial duties.

- This section specifically provided that issuing all citations required by law is a ministerial duty which the clerk was authorized to perform, and that when there was no clerk and the ordinary (now probate judge) performs this duty, the ordinary (now probate judge) acts in the capacity of clerk. Head v. Waldrup, 193 Ga. 165, 17 S.E.2d 585 (1941).

Sufficiency of certificate by probate judge.

- Paragraph (a)(11) of this section was complied with since the ordinary (now probate judge) stated in the certificate that the person was the ordinary (now probate judge) and ex officio clerk, and signed in that manner. Sellers v. Page, 127 Ga. 633, 56 S.E. 1011 (1907); Weeks v. Hosch Lumber Co., 133 Ga. 472, 66 S.E. 168, 134 Am. St. R. 213 (1909).

Ordinary's (now probate judge's) certificate sufficiently authenticates the record when it appears affirmatively in the certificate that the ordinary (now probate judge) had no clerk, and was acting personally as the clerk of the ordinary's (now probate judge's) own court. Powell v. Hansard, 206 Ga. 505, 57 S.E.2d 677 (1950).

Sufficiency of certificate affects admissibility into evidence.

- Certificate by an ordinary (now probate judge) does not render the copy admissible in evidence, unless it is made affirmatively to appear that there is no clerk other than the ordinary (now probate judge). A certificate by the ordinary (now probate judge) that the ordinary (now probate judge) has no clerk would be in substantial compliance with the requirements of the rule. Powell v. Hansard, 206 Ga. 505, 57 S.E.2d 677 (1950).

Certificate of probate judge must disclose identity of clerk.

- Certificate signed by an ordinary (now probate judge) for the purpose of authenticating a transcript from a record of file in court does not conform to law unless the certificate affirmatively discloses whether or not such ordinary (now probate judge) was also the clerk of that court. Lay v. Sheppard, 112 Ga. 111, 37 S.E. 132 (1900).

Certificate by the ordinary (now probate judge) does not conform to law, unless it affirmatively discloses whether or not such ordinary was also the clerk of that court, but a certificate by the ordinary (now probate judge) in which the ordinary (now probate judge) states that by virtue of the ordinary's (now probate judge's) office the ordinary (now probate judge) is clerk of the ordinary's (now probate judge's) own court would comply with the requirements of this section. Powell v. Hansard, 206 Ga. 505, 57 S.E.2d 677 (1950).

Performance of duty showing order entered.

- Order was entered when independent evidence of record in the form of testimony of the clerk of the probate court that the clerk entered the order by entering the notation "granted" in the docket book and an extract of a "granted" entry appearing in the probate court docket. Jabaley v. Jabaley, 208 Ga. App. 179, 430 S.E.2d 119 (1993).

Copy of will lacking certificate not evidence of title.

- If a copy of a will is not certified by the clerk of the court of ordinary (now probate court) nor does such certified copy show probate of the will, such copy cannot be legal evidence of title. This is true even though this evidence was introduced without objection since the evidence does not have any probative value, and, as such, is no good for the purpose offered. Goolsby v. Nails, 217 Ga. 348, 122 S.E.2d 248 (1961).

Certified copy of will needed to be used as muniment of title.

- In order to use a will as a muniment of title, a copy certified by the clerk of the court of ordinary (now probate court) must be introduced showing the probate of the will. However, a copy of a will duly certified that it came from the court of ordinary's (now probate court's) office raises the presumption that such will has been probated. But such copy must be certified by the clerk of the court of ordinary (now probate court), who has jurisdiction over such records. Goolsby v. Nails, 217 Ga. 348, 122 S.E.2d 248 (1961).

Petition for mandamus failed to state cause of action.

- When petition for mandamus to compel ordinary (now probate judge) as clerk of own court to certify certain papers, nowhere alleges that the ordinary (now probate judge) did not certify that the ordinary (now probate judge) had no clerk, or that the ordinary (now probate judge) was acting personally as the clerk of the ordinary's (now probate judge's) own court, or that the ordinary (now probate judge) was also the clerk of that court, the petition failed to state a cause of action for mandamus. Powell v. Hansard, 206 Ga. 505, 57 S.E.2d 677 (1950).

Appointment of temporary administrator is clerical.

- Action of ordinary (now probate judge) in appointing temporary administrator is merely clerical. Irvine v. Wiley, 145 Ga. 867, 90 S.E. 69 (1916); Collins v. Henry, 155 Ga. 886, 118 S.E. 729 (1923).

OPINIONS OF THE ATTORNEY GENERAL

Duty to enter documents and proceedings.

- Clerks of probate courts must enter documents and proceedings in set of books established by O.C.G.A. §§ 15-9-37(8) and53-5-21 and must also enter the documents and proceedings in minutes of court, O.C.G.A. § 15-9-37(7), if such matters are applications to court, orders of court, or otherwise show what was done in probate court. 1981 Op. Att'y Gen. No. U81-41.

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