Full Text of HB3102 103rd General Assembly
HB3102eng 103RD GENERAL ASSEMBLY |
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| 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, |
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| 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 |
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| 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, |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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.
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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 |
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| 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.
| 17 | | Section 99. Effective date. This Act takes effect January | 18 | | 1, 2025. |
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