GA Code § 15-9-13 (2021)
2021 Georgia Code|Title 15 - Courts|Chapter 9 - Probate Courts|Article 1 - General Provisions|§ 15-9-13. Procedure When Judge Unable to Act; Compensation

  Whenever a judge of the probate court is unable to act in any case because of sickness, absence, or any other reason, an associate judge of the probate court, in order of seniority, shall exercise the jurisdiction of the probate court, unless he or she is disqualified under subsection (f) of Code Section 15-9-2.1. Whenever a judge of the probate court is unable to act in any case because of sickness, absence, or any other reason and an associate judge is unable to act, the judge of the probate court may appoint an attorney at law who is a member of the State Bar of Georgia to exercise the jurisdiction of the probate court. If, however, the inability of the probate judge to act arises from any unlawful act or the accusation of an unlawful act on the part of the probate judge, the probate judge shall not appoint an attorney and only another judge shall exercise the jurisdiction of the probate court.   If for any reason the judge of the probate court fails to appoint an attorney to serve, the chief judge of the superior court shall appoint an individual to serve and exercise the jurisdiction of the judge of the probate court in the case.   Except as otherwise provided in paragraph (4) of subsection (a) of Code Section 15-9-2.1, the compensation of the individual serving as provided in this Code section shall be fixed by the board of county commissioners or, in those counties which have no county commissioners, by the chief judge of the superior court. The compensation shall be paid from the general funds of the county. All fees collected during such service by an individual who is not an associate judge of the probate court shall be paid into the general funds of the county.    (Ga. L. 1889, p. 100, § 1; Civil Code 1895, § 4227; Ga. L. 1897, p. 52, § 1; Ga. L. 1907, p. 107, § 1; Civil Code 1910, § 4785; Code 1933, § 24-1710; Ga. L. 1951, p. 129, § 2; Ga. L. 1953, Nov.-Dec. Sess., p. 182, § 1; Ga. L. 1978, p. 891, § 1; Ga. L. 1983, p. 3, § 50; Ga. L. 1983, p. 544, § 1; Ga. L. 1983, p. 884, § 3-14; Ga. L. 1987, p. 1482, § 2; Ga. L. 2018, p. 356, § 1-13/SB 436.)    The 2018 amendment,  effective July 1, 2018, substituted the present provisions of subsection (a) for the former provisions, which read: "Whenever a judge of the probate court is disqualified to act in any case or because of sickness, absence, or any other reason is unable to act in any case, the judge of the probate court may appoint an attorney at law who is a member of the State Bar of Georgia to exercise the jurisdiction of the probate court. If the judge of the probate court does not so appoint, the judge of the city or state court, as the case may be, shall exercise all the jurisdiction of the judge of the probate court in the case. If, however, the inability of the probate judge to act arises from any unlawful act or the accusation of an unlawful act on the part of the probate judge, the probate judge may not appoint an attorney and only another judge shall exercise the jurisdiction of the probate court."; deleted former subsection (b), which read: "If there is no such judge or if for some reason the judge cannot serve in the case, the clerk of the judge of the probate court shall exercise all the jurisdiction of the judge of the probate court in the case."; redesignated former subsections (c) and (d) as present subsection (b) and (c), respectively; in subsection (b), deleted "clerk of the" following "reason the" near the beginning, substituted "fails to appoint an attorney to serve, the chief judge" for "cannot serve in such case, the judge" near the middle, and substituted "an individual" for "a person" in the middle; in subsection (c), in the first sentence, substituted "Except as otherwise provided in paragraph (4) of subsection (a) of Code Section 15-9-2.1, the" for "The" at the beginning, substituted "individual" for "person" near the middle, and inserted "chief" near the end, and, in the third sentence, substituted "such service by an individual who is not an associate judge of the probate court" for "the service".   Cross references.   - Filling of vacancies in public office generally, § 45-5-1 et seq.   Appointment of attorney to act in probate court judge's absence, Uniform Rules for the Probate Courts, Rule 3.   JUDICIAL DECISIONS   Service by other officers when probate judge disqualified.    - If an ordinary (now probate judge) of a given county is disqualified in any matter coming before the court, the county judge or the city court judge, and, if there be neither of such courts, then the clerk of the superior court of such ordinary's (now probate judge's) county may exercise all the jurisdiction of the ordinary (now probate judge) in such case. Maddox v. First Nat'l Bank, 191 Ga. 106, 11 S.E.2d 662 (1940) (decided prior to 1983 amendment).   Probate judge of adjoining county not to assume jurisdiction of disqualified judge.    - Since the adoption of the Code of 1933 there is no authority in the ordinary (now probate judge) of an adjoining county to assume jurisdiction when an ordinary (now probate judge) of a given county is disqualified, the previous law as to the authority of the ordinary (now probate judge) of an adjoining county, as contained in the Civil Code of 1910, § 4785 having been repealed by the Code of 1933. Maddox v. First Nat'l Bank, 191 Ga. 106, 11 S.E.2d 662 (1940).    Parol evidence of disqualification on account of relationship to parties to the probate of a will is admissible. McAfee v. Flanders, 138 Ga. 403, 75 S.E. 319 (1912).   Failure to follow procedures results in nullity.    - Appellants successfully argued that the record was utterly devoid of any indication that the procedure in O.C.G.A. § 15-9-13 was followed in order to authorize the superior court judge to sit over the probate of the decedent's will. No written order was entered pursuant to Uniform Probate Court Rule 3 for the appointment of the superior court judge to act in the probate judge's absence. Thus, the superior court judge was not sitting over the probate proceedings in replacement for the recused probate court judge. Because the superior court lacks subject matter jurisdiction to hear the probate of a will, it follows that the judgment rendered by the superior court here was a nullity and void. Carpenter v. Carpenter, 276 Ga. 746, 583 S.E.2d 852 (2003).    Cited in Holtzendorf v. Glynn, 79 Ga. App. 44, 52 S.E.2d 671 (1949); Taylor v. Young, 253 Ga. App. 585, 560 S.E.2d 40 (2002).   OPINIONS OF THE ATTORNEY GENERAL   Assistance to state courts by replacement probate judge.    - Replacement probate judge appointed in good faith pursuant to subsection (a) of O.C.G.A. § 15-9-13 may provide assistance to the state courts so long as that individual satisfies the qualifications of judges of the state courts under O.C.G.A. § 15-7-21(a)(1), and the request for assistance complies with the terms specified by O.C.G.A. § 15-1-9.1(f). 1994 Op. Att'y Gen. No. U94-12.   Neither attorneys nor clerks may perform marriage ceremonies.    - Neither attorneys appointed pursuant to O.C.G.A. § 15-9-13(a), nor the clerks of the probate court, may perform marriage ceremonies, in that such power is inherently a personal one of the probate judge pursuant to O.C.G.A. § 19-3-30(c). 1988 Op. Att'y Gen. No. U88-22.   RESEARCH REFERENCES   Am. Jur. 2d.   - 46 Am. Jur. 2d, Judges, § 218 et seq.   C.J.S.   - 48A C.J.S., Judges, §§ 37, 40, 41.   ALR.    - Power of judge pro tempore or special judge, after expiration of period for which he was appointed, to entertain motion or assume further jurisdiction in case previously tried before him, 134 A.L.R. 1129.