Full Text of HB3102 103rd General Assembly
HB3102 103RD GENERAL ASSEMBLY |
| | 103RD GENERAL ASSEMBLY
State of Illinois
2023 and 2024 HB3102 Introduced 2/17/2023, by Rep. Jaime M. Andrade, Jr. SYNOPSIS AS INTRODUCED: |
| 760 ILCS 100/2 | from Ch. 21, par. 64.2 | 760 ILCS 100/3 | from Ch. 21, par. 64.3 | 760 ILCS 100/3.1 new | | 760 ILCS 100/4 | from Ch. 21, par. 64.4 | 760 ILCS 100/4.1 new | | 760 ILCS 100/4.2 new | | 760 ILCS 100/5 | from Ch. 21, par. 64.5 | 760 ILCS 100/14 | from Ch. 21, par. 64.14 | 760 ILCS 100/15a | from Ch. 21, par. 64.15a | 760 ILCS 100/25 rep. | |
|
Amends the Cemetery Care Act. Defines "average fair market value", "total return percentage", and "net income". Provides that a trustee may apply to the Comptroller to establish a master trust fund in which deposits are made. Allows a cemetery authority to take distributions from its fund either by distributing ordinary income or total return distribution. Requires an application for the implementation of the total return distribution method to be submitted to the Comptroller at least 120 days before the effective date of the election to receive total return distribution. Allows, where no receiver is available, a circuit court to order a willing local municipality, township, county, or city to take over the cemetery. Repeals a provision regarding the use of care funds. Makes other changes.
|
| |
| | A BILL FOR |
|
| | | HB3102 | | LRB103 30889 LNS 57421 b |
|
| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Cemetery Care Act is amended by changing | 5 | | Sections 2, 3, 4, 5, 14, and 15a and by adding Sections 3.1, | 6 | | 4.1, and 4.2 as follows:
| 7 | | (760 ILCS 100/2) (from Ch. 21, par. 64.2)
| 8 | | Sec. 2. Definitions. The following words, terms and | 9 | | phrases used in this
Act, for the purpose of this Act, have the | 10 | | following meanings:
| 11 | | "Person" means any person, partnership, association, | 12 | | corporation, or other
entity.
| 13 | | "Trustee" means any person authorized to hold funds under | 14 | | this Act.
| 15 | | "Comptroller" means the Comptroller of the State of | 16 | | Illinois.
| 17 | | "Care" means the maintenance of a cemetery and of the | 18 | | lots, graves, crypts,
niches, family mausoleums, memorials, | 19 | | and markers therein; including: (i)
the cutting
and trimming | 20 | | of lawn, shrubs, and trees at reasonable intervals; (ii)
| 21 | | keeping in repair the drains, water lines, roads, buildings, | 22 | | fences, and
other structures, in keeping with a well | 23 | | maintained cemetery; (iii) maintenance of
machinery, tools, |
| | | HB3102 | - 2 - | LRB103 30889 LNS 57421 b |
|
| 1 | | and equipment for such care; (iv) compensation of
employees, | 2 | | payment of insurance premiums, and reasonable payments for
| 3 | | employees
pension and other benefits plans; and (v) to the | 4 | | extent surplus income from
the
care fund is available, the | 5 | | payment of overhead expenses necessary for such
purposes and | 6 | | for maintaining necessary records of lot
ownership, transfers, | 7 | | and burials.
| 8 | | "Care funds" as distinguished from receipts from annual | 9 | | charges or gifts
for current or annual care, means any realty | 10 | | or personalty impressed with a
trust by the terms of any gift, | 11 | | grant, contribution, payment, legacy,
or pursuant to contract, | 12 | | accepted by any cemetery authority
owning, operating, | 13 | | controlling or managing a privately operated cemetery,
or by | 14 | | any trustee or licensee, agent or custodian for the same, | 15 | | under
Section 3 of this Act, and the amounts set aside under | 16 | | Section 4 of this
Act, and any income accumulated therefrom, | 17 | | where legally so directed by the
terms of the transaction by | 18 | | which the principal was established.
| 19 | | "Cemetery" means any land or structure in this State | 20 | | dedicated to and
used, or intended to be used, for the | 21 | | interment of human remains.
| 22 | | "Cemetery authority" means any person, firm, corporation, | 23 | | trustee,
partnership, association or municipality owning, | 24 | | operating, controlling or
managing a cemetery or holding lands | 25 | | for burial grounds or burial purposes
in this State.
| 26 | | "Mausoleum crypt" means a space in a mausoleum used or |
| | | HB3102 | - 3 - | LRB103 30889 LNS 57421 b |
|
| 1 | | intended to be
used, above or under ground, to entomb human | 2 | | remains.
| 3 | | "Family burying ground" means a cemetery in which no lots | 4 | | are sold to
the public and in which interments are restricted | 5 | | to a group of persons
related to each other by blood or | 6 | | marriage.
| 7 | | "Fraternal cemetery" means a cemetery owned, operated, | 8 | | controlled, or
managed by any fraternal organization or | 9 | | auxiliary organizations thereof,
in which the sale of lots, | 10 | | graves, crypts or niches is restricted
principally to its | 11 | | members.
| 12 | | "Grave" means a space of ground in a cemetery, used, or | 13 | | intended to be
used, for burial.
| 14 | | "Investment Company Act of 1940" means Title 15, of the | 15 | | United States
Code, Sections 80a-1 to 80a-51, inclusive, as
| 16 | | amended.
| 17 | | "Investment Company" means any issuer (a) whose securities | 18 | | are
purchasable only with care funds or trust funds, or both; | 19 | | and (b) which is
an open and diversified management company as | 20 | | defined in and registered
under the "Investment Company Act of | 21 | | 1940"; and (c) which has entered into
an agreement with the | 22 | | Comptroller containing such provisions as the
Comptroller by | 23 | | regulation reasonably requires for the proper administration
| 24 | | of this Act.
| 25 | | "Municipal cemetery" means a cemetery owned, operated, | 26 | | controlled or
managed by any city, village, incorporated town, |
| | | HB3102 | - 4 - | LRB103 30889 LNS 57421 b |
|
| 1 | | township, county, or other
municipal corporation, political | 2 | | subdivision, or instrumentality thereof
authorized by law to | 3 | | own, operate, or manage a cemetery.
| 4 | | "Niche" means a space in a columbarium used or intended to | 5 | | be used, for
inurnment of cremated human remains.
| 6 | | "Privately operated cemetery" means any entity that offers | 7 | | interment rights,
entombment rights, or inurnment rights, | 8 | | other than a
fraternal, municipal, State, federal or religious | 9 | | cemetery or a family burying
ground.
| 10 | | "Religious cemetery" means a cemetery owned, operated, | 11 | | controlled, or
managed by any recognized church, religious | 12 | | society, association or
denomination, or by any cemetery | 13 | | authority or any corporation
administering, or through which | 14 | | is administered, the temporalities of any
recognized church, | 15 | | religious society, association or denomination.
| 16 | | "State or federal cemetery" means a cemetery owned, | 17 | | operated,
controlled, or managed by any State or the federal | 18 | | government or any
political subdivision or instrumentality | 19 | | thereof.
| 20 | | "Entombment right" means the right to place individual | 21 | | human remains or
individual cremated human remains in a | 22 | | specific mausoleum crypt or lawn
crypt selected by the | 23 | | consumer for use as a final resting place.
| 24 | | "Interment right" means the right to place individual | 25 | | human remains or
cremated human remains in a specific | 26 | | underground location selected by the
consumer for use as a |
| | | HB3102 | - 5 - | LRB103 30889 LNS 57421 b |
|
| 1 | | final resting place.
| 2 | | "Inurnment right" means the right to place individual | 3 | | cremated human
remains in a specific niche selected by the | 4 | | consumer for use as a final
resting place.
| 5 | | "Lawn crypt" means a permanent underground crypt usually | 6 | | constructed of
reinforced concrete or similar material | 7 | | installed in multiple units for the
entombment of human | 8 | | remains.
| 9 | | "Imputed value" means the retail price of comparable | 10 | | rights within the
same or similar area of the cemetery.
| 11 | | "Average fair market value" means the average of the fair | 12 | | market values of assets held by the fund on the first day of | 13 | | the current fiscal year and the first day of each of the 2 | 14 | | preceding fiscal years, or the average of the fair market | 15 | | value for the entire term of the fund if there are less than 2 | 16 | | preceding years. | 17 | | "Total return percentage" means the annual percentage | 18 | | selected by the fund's trustee or the cemetery authority, but | 19 | | no less than 3% and no more than 5% of the average fair market | 20 | | value of the fund. | 21 | | "Net income" means: | 22 | | (1) ordinary income, which means all net interest and | 23 | | dividends, after fees and taxes taken from income, but | 24 | | does not include any capital gains from the investment of | 25 | | such care funds; or | 26 | | (2)
total return distribution, which means the |
| | | HB3102 | - 6 - | LRB103 30889 LNS 57421 b |
|
| 1 | | distribution of funds from the care fund based on the | 2 | | average fair market value of the fund assets multiplied by | 3 | | the total return percentage. | 4 | | (Source: P.A. 92-651, eff. 7-11-02 .)
| 5 | | (760 ILCS 100/3) (from Ch. 21, par. 64.3)
| 6 | | Sec. 3. Gifts and contributions - Trust funds. Any | 7 | | cemetery authority is
hereby authorized and empowered to | 8 | | accept any gift, grant, contribution,
payment, legacy, or | 9 | | pursuant to contract, any sum of money, funds, securities
or | 10 | | property of any kind, or the income or avails thereof, and to | 11 | | establish a
trust fund to hold the same in perpetuity for the
| 12 | | care of its cemetery, or for the care of any lot, grave, crypt | 13 | | or niche in its
cemetery; or for the special care of any lot, | 14 | | grave, crypt or niche or of any
family mausoleum or memorial, | 15 | | marker, or monument in its cemetery.
| 16 | | The cemetery authority shall act as trustee of all amounts | 17 | | received for
care until they have been deposited into the | 18 | | trust fund established under this
Section. The cemetery | 19 | | authority may continue to be the trustee of up to
$500,000 of | 20 | | care funds that have been deposited into the trust fund, but | 21 | | the
cemetery authority must retain an independent trustee for | 22 | | any amount of care
funds held in trust in excess of that | 23 | | $500,000. A cemetery authority holding
care funds in excess of | 24 | | $500,000 on the effective date of this amendatory Act
of 1996 | 25 | | shall have 36 months to retain an independent trustee for the |
| | | HB3102 | - 7 - | LRB103 30889 LNS 57421 b |
|
| 1 | | excess
amounts held in trust; any other cemetery authority | 2 | | must retain an independent
trustee for its care funds in | 3 | | excess of $500,000 as soon as may be practical.
| 4 | | No gift, grant, legacy, payment or other contribution
| 5 | | shall be invalid by reason of any indefiniteness or | 6 | | uncertainty as to the
beneficiary designated in the instrument | 7 | | creating the gift, grant, legacy,
payment or other | 8 | | contribution. If any gift, grant, legacy, payment or
other | 9 | | contribution consists of non-income producing
property, the | 10 | | cemetery authority accepting it is authorized and empowered
to | 11 | | sell such property and to invest the funds obtained in | 12 | | accordance with
the provisions of the next succeeding | 13 | | paragraph.
| 14 | | The care funds authorized by this Section and provided for | 15 | | in Section 4 of
this Act shall be held intact and, unless | 16 | | otherwise restricted by the terms of
the gift, grant, legacy, | 17 | | contribution, payment, contract or other payment, as
to | 18 | | investments made after June 11, 1951 the trustee of the care | 19 | | funds of the cemetery authority, in
acquiring, investing, | 20 | | reinvesting, exchanging, retaining, selling and
managing | 21 | | property for any such trust, shall exercise the judgment and | 22 | | care
under the circumstances then prevailing, which persons of | 23 | | prudence, discretion
and intelligence exercise in the | 24 | | management of their own affairs, not in
regard to speculation | 25 | | but in regard to the permanent disposition of their
funds, | 26 | | considering the probable income as well as the probable safety |
| | | HB3102 | - 8 - | LRB103 30889 LNS 57421 b |
|
| 1 | | of
their capital. Within the limitations of the foregoing | 2 | | standard, the trustee of the care funds of the cemetery
| 3 | | authority is authorized to acquire and retain every kind of | 4 | | property, real,
personal or mixed, and every kind of | 5 | | investment, including specifically but
without limiting the | 6 | | generality of the foregoing, bonds, debentures and
other | 7 | | corporate obligations, preferred or common stocks and real | 8 | | estate
mortgages, which persons of prudence, discretion and | 9 | | intelligence acquire or
retain for their own account. Within | 10 | | the limitations of the foregoing
standard,
the trustee is | 11 | | authorized to retain property
properly acquired, without | 12 | | limitation as to time and without regard to its
suitability | 13 | | for original purchase. The care funds authorized by this
| 14 | | Section may be commingled with other trust funds received by | 15 | | such cemetery
authority for the care of its cemetery or for the | 16 | | care or special care of
any lot, grave, crypt, niche, private | 17 | | mausoleum, memorial, marker, or
monument in its cemetery, | 18 | | whether received by gift, grant, legacy,
contribution, | 19 | | payment, contract or other conveyance heretofore or hereafter
| 20 | | made to such cemetery authority. Such care funds may be | 21 | | invested with
common trust funds as provided in the The Common | 22 | | Trust Fund Act. The net income
only from the investment of such | 23 | | care funds
shall be allocated and used for the purposes | 24 | | specified in the transaction
by which the principal was | 25 | | established in the proportion that each
contribution bears to | 26 | | the entire sum invested.
|
| | | HB3102 | - 9 - | LRB103 30889 LNS 57421 b |
|
| 1 | | (Source: P.A. 89-615, eff. 8-9-96 .)
| 2 | | (760 ILCS 100/3.1 new) | 3 | | Sec. 3.1. Master trust fund. For the purposes of | 4 | | collective investment and administration, a trustee may apply | 5 | | to the Comptroller to establish a master trust fund in which | 6 | | deposits are made pursuant to the provisions of this Act. The | 7 | | operation of the master trust fund shall be subject to the | 8 | | provisions of this Act and rules applicable to this Act. The | 9 | | master trust fund shall be subject to the following | 10 | | requirements: | 11 | | (1) it shall include only cemetery authorities located | 12 | | in this State that have given written consent to | 13 | | participate in a master trust fund; | 14 | | (2) it must be administered by an independent trustee; | 15 | | (3) the trustee of a master trust fund shall maintain | 16 | | separate records of principal and income for each | 17 | | participant in the master trust fund; | 18 | | (4) the income and associated expenses of the master | 19 | | trust fund shall be divided among the participants in the | 20 | | master trust fund based on the proportion that each | 21 | | participant contributes to the balance of the master trust | 22 | | fund; and | 23 | | (5) the trustee shall make accounting records of the | 24 | | trust, including a report that will include itemized | 25 | | separate accounting for each participant in the master |
| | | HB3102 | - 10 - | LRB103 30889 LNS 57421 b |
|
| 1 | | trust fund, available for review and audit upon request by | 2 | | the Comptroller.
| 3 | | (760 ILCS 100/4) (from Ch. 21, par. 64.4)
| 4 | | Sec. 4. Care funds; deposits; investments. | 5 | | Whenever a cemetery authority owning, operating, | 6 | | controlling or
managing a privately operated cemetery accepts | 7 | | care funds, either in
connection with the sale or giving away | 8 | | at an imputed value of an
interment right, entombment right or | 9 | | inurnment right, or in pursuance
of a contract, or whenever, | 10 | | as a condition precedent to the purchase or
acceptance of an | 11 | | interment right, entombment right or inurnment right,
such | 12 | | cemetery authority requires the establishment of a care fund | 13 | | or a
deposit in an already existing care fund, then such | 14 | | cemetery authority
shall execute and deliver to the person | 15 | | from whom received an instrument in
writing which shall | 16 | | specifically state: (a) the nature and extent of the
care to be | 17 | | furnished, and (b) that such care shall be furnished only in so
| 18 | | far as the net income derived from the amount deposited in | 19 | | trust will
permit (the income from the amount so deposited, | 20 | | less necessary
expenditures of administering the trust, shall | 21 | | be deemed the net income) ,
and (c) that not less than the | 22 | | following amounts will be set aside and
deposited in trust:
| 23 | | 1. For interment rights, $1 per square foot of the | 24 | | space sold or 15% of
the sales price or imputed value, | 25 | | whichever is the greater, with a minimum
of $25 for each |
| | | HB3102 | - 11 - | LRB103 30889 LNS 57421 b |
|
| 1 | | individual interment right.
| 2 | | 2. For entombment rights, not less than 10% of the | 3 | | sales
price or imputed value with a minimum of $25 for each
| 4 | | individual entombment right.
| 5 | | 3. For inurnment rights, not less than 10% of the | 6 | | sales
price or imputed value with a minimum of $15 for each
| 7 | | individual inurnment right.
| 8 | | 4. For any transfer of interment rights, entombment | 9 | | rights, or
inurnment rights recorded in the records of the | 10 | | cemetery authority,
excepting only transfers between | 11 | | members of the immediate family of the
transferor, a | 12 | | minimum of $25 for each such right transferred. For the
| 13 | | purposes of this paragraph "immediate family of the | 14 | | transferor" means the
spouse, parents, grandparents, | 15 | | children, grandchildren, and siblings of the
transferor.
| 16 | | 5. Upon an interment, entombment, or inurnment in a | 17 | | grave, crypt, or
niche in which rights of interment, | 18 | | entombment, or inurnment were
originally acquired from a | 19 | | cemetery authority prior to January 1, 1948, a
minimum of | 20 | | $25 for each such right exercised.
| 21 | | 6. For the special care of any lot, grave, crypt, or | 22 | | niche or of a
family mausoleum, memorial, marker, or | 23 | | monument, the full amount received.
| 24 | | Such setting aside and deposit shall be made by such | 25 | | cemetery authority
not later than 30 days after the close of | 26 | | the month in which
the cemetery authority gave away for an |
| | | HB3102 | - 12 - | LRB103 30889 LNS 57421 b |
|
| 1 | | imputed value or
received the final payment on the purchase | 2 | | price of interment rights,
entombment rights, or inurnment | 3 | | rights, or received the final payment
for the general or | 4 | | special care of a lot,
grave, crypt or niche or of a family | 5 | | mausoleum, memorial, marker or
monument; and such amounts | 6 | | shall be held by
the trustee of the care funds of such cemetery | 7 | | authority in trust in
perpetuity for the specific purposes | 8 | | stated in said written instrument.
For all care funds received | 9 | | by a cemetery authority, except for care
funds received by a | 10 | | cemetery authority pursuant to a specific gift, grant,
| 11 | | contribution, payment, legacy, or contract that are subject to | 12 | | investment
restrictions more restrictive than the investment | 13 | | provisions set forth in
this Act, and except for care funds | 14 | | otherwise subject to a trust agreement
executed by a person or | 15 | | persons responsible for transferring the specific
gift, grant, | 16 | | contribution, payment, or legacy to the cemetery authority
| 17 | | that contains investment restrictions more restrictive than | 18 | | the investment
provisions set forth in this Act, the cemetery | 19 | | authority may, without the
necessity of having to obtain prior | 20 | | approval from any court in this State,
designate a new trustee | 21 | | in accordance with this Act and invest the care
funds in | 22 | | accordance with this Section, notwithstanding any contrary
| 23 | | limitation contained in the trust agreement.
| 24 | | Any such cemetery authority engaged in selling or giving | 25 | | away at an
imputed value interment rights, entombment rights | 26 | | or inurnment rights, in
conjunction with the selling or giving |
| | | HB3102 | - 13 - | LRB103 30889 LNS 57421 b |
|
| 1 | | away at an imputed value any other
merchandise or services not | 2 | | covered by this Act, shall be prohibited from
increasing the | 3 | | sales price or imputed value of those items not requiring a
| 4 | | care fund deposit under this Act with the purpose of | 5 | | allocating a lesser
sales price or imputed value to items that | 6 | | require a care fund deposit.
| 7 | | In the event any sale that would require a deposit to such | 8 | | cemetery
authority's care fund is made by a cemetery authority | 9 | | on an installment
basis, and the installment contract is | 10 | | factored, discounted, or sold to a
third party, the cemetery | 11 | | authority shall deposit the amount due to
the care fund within | 12 | | 30 days after the close of the month in which the
installment | 13 | | contract was factored, discounted, or sold. If, subsequent to
| 14 | | such deposit, the purchaser defaults on the contract such that | 15 | | no care fund
deposit on that contract would have been | 16 | | required, the cemetery authority may
apply the amount | 17 | | deposited as a credit against future required deposits.
| 18 | | The trust authorized by this Section shall be a single | 19 | | purpose trust
fund. In the event of the seller's bankruptcy, | 20 | | insolvency, or assignment
for the benefit of creditors, or an | 21 | | adverse judgment, the trust funds shall
not be available to | 22 | | any creditor as assets of the cemetery authority or to pay
any | 23 | | expenses of any bankruptcy or similar proceeding, but shall be | 24 | | retained
intact to provide for the future maintenance of the | 25 | | cemetery. Except in an
action by the Comptroller to revoke a | 26 | | license issued pursuant
to this Act and for creation of a |
| | | HB3102 | - 14 - | LRB103 30889 LNS 57421 b |
|
| 1 | | receivership as provided in this Act, the
trust shall not be | 2 | | subject to judgment, execution, garnishment, attachment,
or | 3 | | other seizure by process in bankruptcy or otherwise, nor to | 4 | | sale, pledge,
mortgage, or other alienation, and shall not be | 5 | | assignable except as
approved by the Comptroller. The changes | 6 | | made by this amendatory Act of
the 91st General Assembly are | 7 | | intended to clarify existing law regarding the
inability of | 8 | | licensees to pledge the trust.
| 9 | | (Source: P.A. 91-7, eff. 6-1-99 .)
| 10 | | (760 ILCS 100/4.1 new) | 11 | | Sec. 4.1. Distributions. | 12 | | (a) A cemetery authority may take distributions from its | 13 | | fund either by distributing: | 14 | | (1) ordinary income; or | 15 | | (2) total return distribution. | 16 | | (b) If a cemetery authority takes distributions from its | 17 | | fund by total return distribution, the following apply: | 18 | | (1) Fees and taxes may be paid from corpus. | 19 | | (2) If the fees paid by the care fund exceed 2% of the | 20 | | fair market value at the end of a given year, the amount in | 21 | | excess shall be paid from the distributions. | 22 | | (c) A cemetery authority may select a distribution method | 23 | | by delivering written instructions to the trustee of the fund | 24 | | no later than 30 days before the beginning of the calendar | 25 | | year. The distribution method and the distribution rate |
| | | HB3102 | - 15 - | LRB103 30889 LNS 57421 b |
|
| 1 | | selected shall remain in effect unless the cemetery notifies | 2 | | the trustee of its desire to effect a change, application for | 3 | | the change has been submitted to the Comptroller as required | 4 | | in Section 4.2, and copies of the documentation are submitted | 5 | | to the trustee. If the trustee does not receive written | 6 | | instructions from the cemetery authority informing the trustee | 7 | | of the method of calculating chosen, then the trustee shall | 8 | | calculate and distribute based on the ordinary income | 9 | | distribution method. The trustee shall distribute income to | 10 | | the cemetery authority at least annually or in more frequent | 11 | | installments as agreed to by the trustee and cemetery | 12 | | authority. | 13 | | (760 ILCS 100/4.2 new) | 14 | | Sec. 4.2. Application for total return distribution and | 15 | | restrictions. | 16 | | (a) An application for the implementation of the total | 17 | | return distribution method shall be submitted to the | 18 | | Comptroller at least 120 days before the effective date of the | 19 | | election to receive total return distribution. In addition to | 20 | | submitting payment of a reasonable application fee, the | 21 | | cemetery authority shall provide the Comptroller with all of | 22 | | the following: | 23 | | (1) A written investment policy. The investment goals | 24 | | shall be to achieve principal growth through allowable | 25 | | investments for care fund trusts with a secondary goal of |
| | | HB3102 | - 16 - | LRB103 30889 LNS 57421 b |
|
| 1 | | achieving current income. | 2 | | (2) A care fund trust agreement that clearly shows the | 3 | | selection of the total return distribution method. | 4 | | (3) A written distribution policy establishing the | 5 | | total return percentage and initial estimated average fair | 6 | | market value, using the most recent month-end balances as | 7 | | the estimate for the current year, signed by the cemetery | 8 | | authority or trustee, along with supporting documentation | 9 | | and additional information as may be required by the rules | 10 | | adopted under this Act. | 11 | | (b) The application shall be considered approved unless | 12 | | the cemetery authority or trustee is notified otherwise by the | 13 | | Comptroller within 90 days of receipt. The notification shall | 14 | | contain details of the information needed to remedy any | 15 | | deficiencies in the application. | 16 | | (c) The total return percentage elected may be reduced but | 17 | | may not be increased unless additional application is made to | 18 | | the Comptroller with documentation demonstrating the rate of | 19 | | return of the care funds over the last 3 years to support an | 20 | | increase in the percentage. The total return distribution | 21 | | shall not exceed 5% of the average fair market value of the | 22 | | fund assets in a given calendar year. | 23 | | (d) A cemetery authority that has elected the total return | 24 | | distribution method may elect to reconvert to the ordinary | 25 | | income distribution method by submitting written documentation | 26 | | to the Comptroller in support of the reconversion, including a |
| | | HB3102 | - 17 - | LRB103 30889 LNS 57421 b |
|
| 1 | | copy of the trust agreement, notification on the proposed | 2 | | effective date of the reconversion, and any additional | 3 | | information required by the Comptroller. | 4 | | (e) The Comptroller may take corrective measures, | 5 | | including reducing the total return percentage or requiring a | 6 | | distribution of only ordinary income for a year under one or | 7 | | more of the following circumstances: | 8 | | (1) if the average fair market value of the care fund | 9 | | from one 3-year period to the previous 3-year period | 10 | | declines by 10% or more; | 11 | | (2) if the average fair market value of the care fund | 12 | | declines by more than 30% during a rolling 5-year period; | 13 | | (3) if the fair market value of the fund at the | 14 | | beginning of a fiscal year is less than 80% of the fair | 15 | | market value of the fund on the first day of the fiscal | 16 | | year when the care fund started making distributions based | 17 | | on the total return distribution method; | 18 | | (4) if there is an uncorrected care fund deficiency as | 19 | | determined by the Comptroller's review of the annual | 20 | | report; or | 21 | | (5) if the Comptroller determines that the trustee is | 22 | | not able to demonstrate sufficient knowledge and expertise | 23 | | regarding the effective implementation of distributing | 24 | | income for the maintenance of the cemetery using the total | 25 | | return distribution method. | 26 | | (f) The Comptroller may evaluate the care fund conditions |
| | | HB3102 | - 18 - | LRB103 30889 LNS 57421 b |
|
| 1 | | and choose not to impose corrective measures if the | 2 | | Comptroller finds that: | 3 | | (1) the reasons are due to unusual or temporary | 4 | | factors not within the control of the cemetery authority | 5 | | or the trustee and that could not have been reasonably | 6 | | anticipated; | 7 | | (2) the current investment policy of the fund is | 8 | | reasonably designed to protect the fund from further | 9 | | declines in fair market value; or | 10 | | (3) the exception appears to be both necessary and | 11 | | appropriate for the continued protections of the care | 12 | | fund.
| 13 | | (760 ILCS 100/5) (from Ch. 21, par. 64.5)
| 14 | | Sec. 5. No cemetery authority, nor any agent, servant, or | 15 | | employee of it,
nor any other person, shall advertise, | 16 | | represent, guarantee, promise, or
contract that perpetual | 17 | | care, permanent care, perpetual or permanent
maintenance, care | 18 | | forever, continuous care, eternal care, everlasting care,
or | 19 | | any similar or equivalent care, or care for any number of years | 20 | | of any
cemetery or of any lot, grave, crypt or niche, or of any | 21 | | family mausoleum,
memorial, marker, or monument, will be | 22 | | furnished: Provided, however, that
any cemetery authority may | 23 | | advertise, represent, guarantee, promise or
contract that care | 24 | | will be furnished from the net income only derived from
funds | 25 | | held in trust as provided in Sections Section 3 and 4 of this |
| | | HB3102 | - 19 - | LRB103 30889 LNS 57421 b |
|
| 1 | | Act; and may
advertise, represent, guarantee, promise or | 2 | | contract that care will be
given any lot, grave, crypt, or | 3 | | niche, or any family mausoleum, memorial,
marker, or monument | 4 | | for any definite number of years, such care to be
furnished | 5 | | under a contract providing that the principal of the amount | 6 | | paid
under the contract shall be used to furnish the care and | 7 | | further providing
specifically the care to be given and the | 8 | | number of years for which it is
to be given.
| 9 | | (Source: Laws 1947, p. 338 .)
| 10 | | (760 ILCS 100/14) (from Ch. 21, par. 64.14)
| 11 | | Sec. 14.
The Comptroller may at any time investigate the | 12 | | cemetery business
of every licensee with respect to its care | 13 | | funds. The Comptroller shall
examine at least annually every | 14 | | licensee who has holds $250,000 or more in
its care funds. For | 15 | | that purpose, the Comptroller shall have free access
to the | 16 | | office and places of business and to such records of all
| 17 | | licensees and of all trustees of the care funds of all | 18 | | licensees as
shall relate to the acceptance, use and | 19 | | investment of care funds. The
Comptroller may require the | 20 | | attendance of and examine under oath all
persons whose | 21 | | testimony he may require relative to such business and in
such | 22 | | cases the Comptroller or any qualified representative of the
| 23 | | Comptroller whom the Comptroller may designate, may administer | 24 | | oaths to
all such persons called as witnesses, and the | 25 | | Comptroller, or any such
qualified representative of the |
| | | HB3102 | - 20 - | LRB103 30889 LNS 57421 b |
|
| 1 | | Comptroller, may conduct such
examinations. The cost of an | 2 | | initial examination
shall be borne by the
cemetery authority | 3 | | if it has $10,000 or more in such fund; otherwise, by
the | 4 | | Comptroller. The charge made by the Comptroller for such | 5 | | examination
shall be based upon the total amount of care funds | 6 | | held by the cemetery
authority as of the end of the calendar or | 7 | | fiscal year for which a
report is required by Section 12 of | 8 | | this Act and shall be in accordance
with the following | 9 | | schedule:
| 10 | | less than $10,000 .........................no charge;
| 11 | | $10,000 or more but less than
| 12 | | $50,000 .............................................$10;
| 13 | | $50,000 or more but less than
| 14 | | $100,000 ............................................$40;
| 15 | | $100,000 or more but less than
| 16 | | $250,000 ............................................$80;
| 17 | | $250,000 or more ....................................$100.
| 18 | | Any licensee which is not required to be examined annually | 19 | | shall submit
an annual report to the Comptroller containing | 20 | | such information as the
Comptroller reasonably may request.
| 21 | | The Comptroller may order additional audits or | 22 | | examinations as he or she
may deem necessary or advisable to | 23 | | ensure the safety and stability of the trust
funds and to | 24 | | ensure compliance with this Act. These additional audits or
| 25 | | examinations shall only be made after good cause is | 26 | | established by the
Comptroller in the written order. The |
| | | HB3102 | - 21 - | LRB103 30889 LNS 57421 b |
|
| 1 | | grounds for ordering these additional
audits or examinations | 2 | | may include, but shall not be limited to:
| 3 | | (1) material and unverified changes or fluctuations in | 4 | | trust balances;
| 5 | | (2) the licensee changing trustees more than twice in | 6 | | any 12-month
period;
| 7 | | (3) any withdrawals or attempted withdrawals from the | 8 | | trusts in violation
of this Act; or
| 9 | | (4) failure to maintain or produce documentation | 10 | | required by this Act for
deposits into trust accounts or | 11 | | trust investment activities.
| 12 | | Prior to ordering an additional audit or examination, the | 13 | | Comptroller shall
request the licensee to respond and comment | 14 | | upon the factors identified by the
Comptroller as warranting | 15 | | the subsequent examination or audit. The licensee
shall have | 16 | | 30 days to provide a response to the Comptroller. If the
| 17 | | Comptroller decides to proceed with the additional examination | 18 | | or audit, the
licensee shall bear the full cost of that | 19 | | examination or audit, up to a maximum
of $7,500. The
| 20 | | Comptroller may elect to pay for the examination or audit and | 21 | | receive
reimbursement from the licensee. Payment of the costs | 22 | | of the examination or
audit by a licensee shall be a condition | 23 | | of receiving or maintaining a license
under this Act. All | 24 | | moneys received by the Comptroller for examination or
audit | 25 | | fees shall be maintained in a separate account to be known as | 26 | | the
Comptroller's Administrative
Fund. This Fund,
subject to |
| | | HB3102 | - 22 - | LRB103 30889 LNS 57421 b |
|
| 1 | | appropriation by the General Assembly, may
be utilized by the | 2 | | Comptroller for
enforcing this Act and other purposes that may | 3 | | be authorized by law.
| 4 | | (Source: P.A. 89-615, eff. 8-9-96 .)
| 5 | | (760 ILCS 100/15a) (from Ch. 21, par. 64.15a)
| 6 | | Sec. 15a.
Where any cemetery authority owning, operating, | 7 | | controlling or
managing a privately operated cemetery or any | 8 | | trustee for the same has
accepted care funds within the | 9 | | meaning of this Act, and is considered abandoned or seeks | 10 | | dissolution dissolution is
sought by such cemetery authority | 11 | | in any manner, by resolution of such
cemetery authority, or | 12 | | the trustees thereof, notice shall be given to the
Comptroller | 13 | | of such intention to dissolve, and proper disposition shall be
| 14 | | made of the care funds so held for the general benefit of such | 15 | | lot owners
by or for the benefit of such cemetery authority, as | 16 | | provided by law, or in
accordance with the trust provisions of | 17 | | any gift, grant, contribution,
payment, legacy or pursuant to | 18 | | any contract whereby such funds were
created. The Comptroller | 19 | | represented by the Attorney General may apply to
the circuit | 20 | | court for the appointment of a receiver, trustee, successor in
| 21 | | trust, or for directions of such court as to the proper | 22 | | disposition to be
made of such care funds, to the end that the | 23 | | uses and purposes for which
such trust or care funds were | 24 | | created may be accomplished. Where no such receiver is | 25 | | available, the circuit court may order a willing local |
| | | HB3102 | - 23 - | LRB103 30889 LNS 57421 b |
|
| 1 | | municipality, township, county, or city to take over the | 2 | | cemetery. Any existing deed or care funds may be conveyed or | 3 | | transferred to the unit of local government. If there is no | 4 | | party available to convey the deed or transfer the care funds, | 5 | | then a judicial deed and court order may be obtained in the | 6 | | county in which the cemetery is located, and such deed or other | 7 | | writing, if it relates to land, shall promptly, after its | 8 | | execution by a judge or the sheriff, be recorded in the | 9 | | recorder's office of the county wherein the land is situated. | 10 | | Any cemetery taken over by a local municipality, township, | 11 | | county, or city shall be considered a municipal cemetery for | 12 | | the purposes of this Act.
| 13 | | (Source: P.A. 87-747; 88-477 .)
| 14 | | (760 ILCS 100/25 rep.) | 15 | | Section 10. The Cemetery Care Act is amended by repealing | 16 | | Section 25. |
|