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91_SB0259eng
SB259 Engrossed LRB9100773ACsb
1 AN ACT concerning funeral and cemetery services, amending
2 named Acts.
3 Be it enacted by the People of the State of Illinois,
4 represented in the General Assembly:
5 Section 5. The Illinois Funeral or Burial Funds Act is
6 amended by changing Section 1 as follows:
7 (225 ILCS 45/1) (from Ch. 111 1/2, par. 73.101)
8 Sec. 1. Payment under pre-need contract. Except as
9 otherwise provided in this Section, all sales proceeds paid
10 to any person, partnership, association or corporation with
11 respect to merchandise or services covered by this Act, upon
12 any agreement or contract, or any series or combination of
13 agreements or contracts, which has for a purpose the
14 furnishing or performance of funeral services, or the
15 furnishing or delivery of any personal property, merchandise,
16 or services of any nature in connection with the final
17 disposition of a dead human body, including, but not limited
18 to, outer burial containers, urns, combination casket-vault
19 units, caskets and clothing, for future use at a time
20 determinable by the death of the person or persons whose body
21 or bodies are to be so disposed of, shall be held to be trust
22 funds, and shall be placed in trust in accordance with
23 Sections 1b and 2, or shall be used to purchase life
24 insurance or annuities in accordance with Section 2a. The
25 person, partnership, association or corporation receiving
26 said payments under a pre-need contract is hereby declared to
27 be a trustee thereof until deposits of funds are made in
28 accordance with Section 1b or 2a of this Act. Persons
29 holding less than $500,000 in trust funds may continue to act
30 as the trustee after the funds are deposited in accordance
31 with subsection (d) of Section 1b.
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1 Nothing in this Act shall be construed to prohibit the
2 inclusion of outer burial containers in sales contracts under
3 the Illinois Pre-Need Cemetery Sales Act.
4 (Source: P.A. 88-477.)
5 Section 10. The Illinois Pre-Need Cemetery Sales Act is
6 amended by changing Sections 4, 14, 15, and 20 as follows:
7 (815 ILCS 390/4) (from Ch. 21, par. 204)
8 Sec. 4. Definitions. As used in this Act, the following
9 terms shall have the meaning specified:
10 (a) "Pre-need sales contract" or "Pre-need sales" means
11 any agreement or contract or series or combination of
12 agreements or contracts which have for a purpose the sale of
13 cemetery merchandise, cemetery services or undeveloped
14 interment, entombment or inurnment spaces where the terms of
15 such sale require payment or payments to be made at a
16 currently determinable time and where the merchandise,
17 services or completed spaces are to be provided more than 120
18 days following the initial payment on the account.
19 (b) "Delivery" occurs when:
20 (1) physical possession of the merchandise is
21 transferred or the easement for burial rights in a
22 completed space is executed, delivered and transferred to
23 the buyer; or
24 (2) title to the merchandise has been transferred
25 to the buyer and the merchandise has been paid for and is
26 in the possession of the seller who has placed it, until
27 needed, at the site of its ultimate use; or
28 (3) (A) A. the merchandise has been permanently
29 identified with the name of the buyer or the beneficiary
30 and delivered to a licensed and bonded warehouse and both
31 title to the merchandise and a warehouse receipt have
32 been delivered to the purchaser or beneficiary; except
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1 that in the case of outer burial containers, the use of a
2 licensed and bonded warehouse as set forth in this
3 paragraph shall not constitute delivery for purposes of
4 this Act. Nothing herein shall prevent a seller from
5 perfecting a security interest in accordance with the
6 Uniform Commercial Code on any merchandise covered under
7 this Act.
8 (B) B. All warehouse facilities to which sellers
9 deliver merchandise pursuant to this Act shall:
10 (i) be either located in the State of Illinois
11 or qualify as a foreign warehouse facility as
12 defined herein;
13 (ii) submit to the Comptroller not less than
14 annually, by March 1 of each year, a report of all
15 cemetery merchandise stored by each licensee under
16 this Act which is in storage on the date of the
17 report;
18 (iii) permit the Comptroller or his designee
19 at any time to examine stored merchandise and to
20 examine any documents pertaining thereto;
21 (iv) submit evidence satisfactory to the
22 Comptroller that all merchandise stored by said
23 warehouse for licensees under this Act is insured
24 for casualty or other loss normally assumed by a
25 bailee for hire;
26 (v) demonstrate to the Comptroller that the
27 warehouse has procured and is maintaining a
28 performance bond in the form, content and amount
29 sufficient to unconditionally guarantee to the
30 purchaser or beneficiary the prompt shipment of the
31 cemetery merchandise.
32 (C) C. "Cemetery merchandise" means items of
33 personal property normally sold by a cemetery authority
34 not covered under the Illinois Funeral or Burial Funds
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1 Act "An Act concerning agreements for furnishing or
2 delivery of personal property, merchandise or services in
3 connection with the final disposition of dead human
4 bodies and regulating use or disposition of funds paid on
5 said agreements and providing penalties for violation
6 thereof", approved July 14, 1955, as amended, including
7 but not limited to:
8 (1) memorials,
9 (2) markers,
10 (3) monuments, and
11 (4) foundations, and.
12 (5) outer burial containers.
13 (D) D. "Undeveloped interment, entombment or
14 inurnment interment spaces" or "undeveloped spaces" means
15 any space to be used for the reception of human remains
16 that is not completely and totally constructed at the
17 time of initial payment therefor therefore in a:
18 (1) lawn crypt,
19 (2) mausoleum,
20 (3) garden crypt,
21 (4) columbarium, or
22 (5) cemetery section.
23 (E) E. "Cemetery services" means those services
24 customarily performed by a cemetery or crematory
25 personnel in connection with the interment, entombment,
26 inurnment or cremation of a dead human body.
27 (F) F. "Cemetery section" means a grouping of
28 spaces intended to be developed simultaneously for the
29 purpose of interring human remains.
30 (G) G. "Columbarium" means an arrangement of niches
31 that may be an entire building, a complete room, a series
32 of special indoor alcoves, a bank along a corridor or
33 part of an outdoor garden setting that is constructed of
34 permanent material such as bronze, marble, brick, stone
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1 or concrete for the inurnment of human remains.
2 (H) H. "Lawn crypt" means a permanent underground
3 crypt usually constructed of reinforced concrete or
4 similar material installed in multiple units for the
5 interment of human remains.
6 (I) I. "Mausoleum" or "garden crypt" means a
7 grouping of spaces constructed of reinforced concrete or
8 similar material constructed or assembled above the
9 ground for entombing human remains.
10 (J) J. "Memorials, markers and monuments" means the
11 object usually comprised of a permanent material such as
12 granite or bronze used to identify and memorialize the
13 deceased.
14 (K) K. "Foundations" means those items used to
15 affix or support a memorial or monument to the ground in
16 connection with the installation of a memorial, marker or
17 monument.
18 (L) L. "Person" means an individual, corporation,
19 partnership, joint venture, business trust, voluntary
20 organization or any other form of entity.
21 (M) M. "Seller" means any person selling or
22 offering for sale cemetery merchandise, cemetery services
23 or undeveloped spaces on a pre-need basis.
24 (N) N. "Religious cemetery" means mean a cemetery
25 owned, operated, controlled or managed by any recognized
26 church, religious society, association or denomination or
27 by any cemetery authority or any corporation
28 administering, or through which is administered, the
29 temporalities of any recognized church, religious
30 society, association or denomination.
31 (O) O. "Municipal cemetery" means a cemetery owned,
32 operated, controlled or managed by any city, village,
33 incorporated town, township, county or other municipal
34 corporation, political subdivision, or instrumentality
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1 thereof authorized by law to own, operate or manage a
2 cemetery.
3 (O-1) "Outer burial container" means a container
4 made of concrete, steel, wood, fiberglass, or similar
5 material, used solely at the interment site, and designed
6 and used exclusively to surround or enclose a separate
7 casket and to support the earth above such casket,
8 commonly known as a burial vault, grave box, or grave
9 liner, but not including a lawn crypt.
10 (P) P. "Sales price" means the gross amount paid by
11 a purchaser on a pre-need sales contract for cemetery
12 merchandise, cemetery services or undeveloped interment,
13 entombment or inurnment spaces, excluding sales taxes,
14 credit life insurance premiums, finance charges and
15 "Cemetery Care Act" contributions.
16 (Q) Q. "Foreign warehouse facility" means a
17 warehouse facility now or hereafter located in any state
18 or territory of the United States, including the District
19 of Columbia, other than the State of Illinois.
20 A foreign warehouse facility shall be deemed to have
21 appointed the Comptroller to be its true and lawful
22 attorney upon whom may be served all legal process in any
23 action or proceeding against it relating to or growing
24 out of this Act, and the acceptance of the delivery of
25 stored merchandise under this Act shall be signification
26 of its agreement that any such process against it which
27 is so served, shall be of the same legal force and
28 validity as though served upon it personally.
29 Service of such process shall be made by delivering
30 to and leaving with the Comptroller, or any agent having
31 charge of the Comptroller's Department of Cemetery and
32 Burial Trusts, a copy of such process and such service
33 shall be sufficient service upon such foreign warehouse
34 facility if notice of such service and a copy of the
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1 process are, within 10 days thereafter, sent by
2 registered mail by the plaintiff to the foreign warehouse
3 facility at its principal office and the plaintiff's
4 affidavit of compliance herewith is appended to the
5 summons. The Comptroller shall keep a record of all
6 process served upon him under this Section and shall
7 record therein the time of such service.
8 (Source: P.A. 85-1209; revised 10-31-98.)
9 (815 ILCS 390/14) (from Ch. 21, par. 214)
10 Sec. 14. A written sales contract shall be executed in
11 duplicate for each pre-need sale made by a licensee, and a
12 signed copy given to the purchaser. Each completed contract
13 shall be numbered and shall contain the name of the purchaser
14 and the seller, the name of the person, if known, who is to
15 receive the cemetery merchandise, cemetery services or the
16 completed interment, entombment or inurnment spaces under the
17 contract and specifically identify such merchandise, services
18 or spaces. In addition, such contracts must contain a
19 provision in distinguishing typeface substantially as follow:
20 "Notwithstanding anything in this contract to the
21 contrary, you are afforded certain specific rights of
22 cancellation and refund under Sections 18 and 19 of the
23 Illinois Pre-Need Cemetery Sales Act, enacted by the 84th
24 General Assembly of the State of Illinois".
25 All pre-need sales contracts shall be sold on a
26 guaranteed price basis. At the time of performance of the
27 service or delivery of the merchandise, the seller shall be
28 prohibited from assessing the purchaser or his heirs or
29 assigns or duly authorized representative any additional
30 charges for the specific merchandise and services listed on
31 the pre-need sales contract.
32 All pre-need sales contracts must be in writing and no
33 pre-need contract form shall be used without prior filing
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1 with the Comptroller. The Comptroller shall review all
2 pre-need sales contract forms and shall prohibit the use of
3 contract forms that do not meet the requirements of this Act
4 upon written notification to the seller. Any use or
5 attempted use of any oral pre-need sales contract or any
6 written pre-need sales contract in a form not filed with the
7 Comptroller or in a form that does not meet the requirements
8 of this Act shall be deemed a violation of this Act.
9 (Source: P.A. 85-805.)
10 (815 ILCS 390/15) (from Ch. 21, par. 215)
11 Sec. 15. (a) Whenever a seller receives anything of
12 value under a pre-need sales contract, the person receiving
13 such value shall deposit 50% of all proceeds received into
14 one or more trust funds maintained pursuant to this Section,
15 except that, in the case of proceeds received for the
16 purchase of outer burial containers, 85% of the proceeds
17 shall be deposited into one or more trust funds. Such
18 deposits shall be made until the amount deposited in trust
19 equals 50% of the sales price of the cemetery merchandise,
20 cemetery services and undeveloped spaces included in such
21 contract, except that, in the case of deposits for outer
22 burial containers, deposits shall be made until the amount
23 deposited in trust equals 85% of the sales price. In the
24 event an installment contract is factored, discounted or sold
25 to a third party, the seller shall deposit an amount equal to
26 50% of the sales price of the installment contract, except
27 that, for the portion of the contract attributable to the
28 sale of outer burial containers, the seller shall deposit an
29 amount equal to 85% of the sales price. Proceeds required to
30 be deposited in trust which are attributable to cemetery
31 merchandise and cemetery services shall be held in a
32 "Cemetery Merchandise Trust Fund". Proceeds required to be
33 deposited in trust which are attributable to the sale of
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1 undeveloped interment, entombment or inurnment spaces shall
2 be held in a "Pre-construction Trust Fund". If merchandise is
3 delivered for storage in a bonded warehouse, as authorized
4 herein, and payment of transportation or other charges
5 totaling more than $20 will be required in order to secure
6 delivery to the site of ultimate use, upon such delivery to
7 the warehouse the seller shall deposit to the trust fund the
8 full amount of the actual or estimated transportation charge.
9 Transportation charges which have been prepaid by the seller
10 shall not be deposited to trust funds maintained pursuant to
11 this Section. As used in this Section, "all proceeds" means
12 the entire amount paid by a purchaser in connection with a
13 pre-need sales contract, including finance charges and
14 Cemetery Care Act contributions, but excluding sales taxes
15 and credit life insurance premiums.
16 (b) All trust deposits required by this Act shall be
17 made within 30 days following the end of the month of
18 receipt.
19 (c) A trust established under this Act must be
20 maintained:
21 (1) in a trust account established in a bank, savings
22 and loan association or credit union authorized to do
23 business in Illinois where such accounts are insured by an
24 agency of the federal government;
25 (2) in a trust company authorized to do business in
26 Illinois; or
27 (3) in an investment company authorized to do business
28 in Illinois insured by the Securities Brokers Insurance
29 Corporation.
30 (d) Funds deposited in the trust account shall be
31 identified in the records of the seller by the name of the
32 purchaser. Nothing shall prevent the trustee from commingling
33 the deposits in any such trust fund for purposes of the
34 management thereof and the investment of funds therein as
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1 provided in the "Common Trust Fund Act", approved June 24,
2 1949, as amended. In addition, multiple trust funds
3 maintained pursuant to this Act may be commingled or
4 commingled with other funeral or burial related trust funds,
5 provided that all record keeping requirements imposed by or
6 pursuant to law are met.
7 (e) In lieu of a pre-construction trust fund, a seller
8 of undeveloped interment, entombment or inurnment spaces may
9 obtain and file with the Comptroller a performance bond in an
10 amount at least equal to 50% of the sales price of the
11 undeveloped spaces or the estimated cost of completing
12 construction, whichever is greater. The bond shall be
13 conditioned on the satisfactory construction and completion
14 of the undeveloped spaces as required in Section 19 of this
15 Act.
16 Each bond obtained under this Section shall have as
17 surety thereon a corporate surety company incorporated under
18 the laws of the United States, or a State, the District of
19 Columbia or a territory or possession of the United States.
20 Each such corporate surety company must be authorized to
21 provide performance bonds as required by this Section, have
22 paid-up capital of at least $250,000 in cash or its
23 equivalent and be able to carry out its contracts. Each
24 pre-need seller must provide to the Comptroller, for each
25 corporate surety company such seller utilizes, a statement of
26 assets and liabilities of the corporate surety company sworn
27 to by the president and secretary of the corporation by
28 January 1 of each year.
29 The Comptroller shall prohibit pre-need sellers from
30 doing new business with a corporate surety company if the
31 company is insolvent or is in violation of this Section. In
32 addition the Comptroller may direct a pre-need seller to
33 reinstate a pre-construction trust fund upon the
34 Comptroller's determination that the corporate surety company
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1 no longer is sufficient security.
2 All performance bonds issued pursuant to this Section
3 must be irrevocable during the statutory term for completing
4 construction specified in Section 19 of this Act, unless
5 terminated sooner by the completion of construction.
6 (f) Whenever any pre-need contract shall be entered into
7 and include 1) items of cemetery merchandise and cemetery
8 services, and 2) rights to interment, inurnment or entombment
9 in completed spaces without allocation of the gross sale
10 price among the items sold, the application of payments
11 received under the contract shall be allocated, first to the
12 right to interment, inurnment or entombment, second to items
13 of cemetery merchandise and cemetery services, unless some
14 other allocation is clearly provided in the contract.
15 (g) Any person engaging in pre-need sales who enters
16 into a combination sale which involves the sale of items
17 covered by a trust or performance bond requirement and any
18 item not covered by any entrustment or bond requirement,
19 shall be prohibited from increasing the gross sales price of
20 those items not requiring entrustment with the purpose of
21 allocating a lesser gross sales price to items which require
22 a trust deposit or a performance bond.
23 (Source: P.A. 85-1209.)
24 (815 ILCS 390/20) (from Ch. 21, par. 220)
25 Sec. 20. (a) Each licensee must keep accurate accounts,
26 books and records in this State of all transactions, copies
27 of agreements, dates and amounts of payments made or
28 received, the names and addresses of the contracting parties,
29 the names and addresses of persons for whose benefit funds
30 are received, if known, and the names of the trust
31 depositories.
32 (b) Each licensee must maintain such records for a
33 period of 3 years after the licensee shall have fulfilled his
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1 obligation under the pre-need contract or 3 years after any
2 stored merchandise shall have been provided to the purchaser
3 or beneficiary, whichever is later.
4 (c) Each licensee shall submit reports to the
5 Comptroller annually, under oath, on forms furnished by the
6 Comptroller. The annual report shall contain, but shall not
7 be limited to, the following:
8 (1) An accounting of the principal deposit and
9 additions of principal during the fiscal year.
10 (2) An accounting of any withdrawal of principal or
11 earnings.
12 (3) An accounting at the end of each fiscal year,
13 of the total amount of principal and earnings held.
14 (d) The annual report shall be filed by the licensee
15 with the Comptroller within 75 days after the end of the
16 licensee's fiscal year. An extension of up to 60 days may be
17 granted by the Comptroller, upon a showing of need by the
18 licensee. Any other reports shall be in the form furnished
19 or specified by the Comptroller. If a licensee fails to
20 submit an annual report to the Comptroller within the time
21 specified in this Section, the Comptroller shall impose upon
22 the licensee a penalty of $5 for each and every day the
23 licensee remains delinquent in submitting the annual report.
24 Each report shall be accompanied by a check or money order in
25 the amount of $10 payable to: Comptroller, State of
26 Illinois.
27 (e) On and after the effective date of this amendatory
28 Act, a licensee may report all required information
29 concerning the sale of outer burial containers on the
30 licensee's annual report required to be filed under this Act
31 and shall not be required to report that information under
32 the Illinois Funeral or Burial Funds Act.
33 (Source: P.A. 88-477.)
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1 Section 99. Effective date. This Act takes effect
2 January 1, 2000.
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