§ 36-7126. Establishment and maintenance of cemetery merchandise trust funds.

A.  Each organization shall establish and maintain a cemetery merchandise trust fund with a financial institution having trust powers.  A cemetery merchandise trust fund shall at all times be in the custody of a financial institution.  Any cemetery merchandise trust funds may be invested, reinvested, exchanged, retained, sold and managed as a part of common trust funds in the manner required by and subject to the Insurance Commissioner and at the election of the trustee.  A copy of each contract or a written notice containing all relevant information regarding the prepaid cemetery merchandise contracts for which deposits are made shall be furnished to the financial institution.  The financial institution shall serve as trustee for the purposes of the Cemetery Merchandise Trust Act.

B.  Deposits to a cemetery merchandise trust fund shall be carried in the name of the organization and the amounts deposited therein may be commingled.  Provided, however, the accounting records shall establish a separate account for each prepaid cemetery merchandise contract and shall show the amounts deposited, and the income or loss accruing thereon, with respect to each prepaid cemetery merchandise contract.  The trustee shall reimburse the organization for all income taxes and costs incurred with respect to the operation of the fund, and the trustee shall be reimbursed from the earnings of the fund for all reasonable costs incurred in serving as trustee, including a reasonable fee for its services.  The taxes and costs shall be paid from earnings for the fund prior to the allocation of earnings to the individual accounts.

C.  An organization entering into a prepaid cemetery merchandise contract shall be entitled to retain all of the purchase price under the prepaid cemetery merchandise contract until it has received an amount equal to thirty-five percent (35%) of the purchase price of the cemetery merchandise sold in a prepaid cemetery merchandise contract.

D.  After an organization has received the amount it is entitled to receive, in accordance with subsection C of this section, all payments of the purchase price to the organization pursuant to a prepaid cemetery merchandise contract shall be deposited by the organization in a cemetery merchandise trust fund until such time as the requirements of subsection E of this section have been satisfied or delivery is made of the cemetery merchandise, or until an amount satisfying the minimum funding requirement has been deposited. Thereafter, all payments of the purchase price in excess of the minimum funding requirement may be retained by the organization. Deposits shall be made within ten (10) business days after the end of the month in which such deposits are received by the organization.

E.  Annually, as of December 31 of each year, each organization shall determine the wholesale cost for all cemetery merchandise covered by a prepaid cemetery merchandise contract for which funds are then held in a cemetery merchandise trust or in an individual merchandise account.  If the amount held with respect to a prepaid cemetery merchandise contract exceeds the minimum funding required, the excess shall be paid by the trustee of the cemetery merchandise trust to the organization.  In such event, no further deposit shall be required with respect to the prepaid cemetery merchandise contract until such time as the amount held no longer exceeds the minimum funding requirement.  If the minimum funding requirement is not satisfied, no amount shall be paid to or withdrawn by the organization and the organization shall continue or shall resume, as the case may be, making the deposits required by subsection D of this section.

F.  No part of the monies required to be held in a cemetery merchandise trust fund pursuant to the provisions of the Cemetery Merchandise Trust Act shall ever be used for any other purpose other than investment as authorized by this section until delivery of the cemetery merchandise is made.

G.  Delivery of cemetery merchandise for the purposes of this subsection may be accomplished in one of the following ways:

1.  Actual and physical delivery of the cemetery merchandise to the purchaser;

2.  Physical attachment of the cemetery merchandise to realty or cemetery space owned by the purchaser;

3.  Certification by an approved manufacturer to the purchaser that the organization has paid the wholesale price of the cemetery merchandise and that the cemetery merchandise shall be delivered upon request of the purchaser;

4.  Written notification to the purchaser by the organization that the cemetery merchandise is in the possession of the organization and may be removed by the purchaser upon full payment for the cemetery merchandise; and

5.  When construction or permanent installation of the cemetery merchandise has been completed, with respect to cemetery merchandise which is affixed to realty.

H.  Upon delivery of the cemetery merchandise pursuant to a prepaid cemetery merchandise trust contract, the organization shall present the trustee with a verified statement that delivery has been made, and upon the presentation, the trustee shall pay to the organization the amount of any funds held in trust with respect to the cemetery merchandise delivered and no further deposits shall be made with respect to the cemetery merchandise.

I.  Should the buyer move to a community in which the cemetery does not accept transfers of outer enclosures from the cemetery which the buyer has entered into a cemetery merchandise contract, the selling organization will refund sixty-five percent (65%) of the retail price plus interest equal to the annual interest computed from the date that the contract was paid in full based on the passbook interest rate of the financial institution at the time that the refund is requested.

Added by Laws 1989, c. 297, § 22, eff. Nov. 1, 1989.  Amended by Laws 1993, c. 218, § 9, eff. Sept. 1, 1993; Laws 1995, c. 82, § 8, eff. Nov. 1, 1995; Laws 2010, c. 58, § 16, eff. July 1, 2010.  Renumbered from Title 8, § 306 by Laws 2010, c. 58, § 43, eff. July 1, 2010.