(225 ILCS 45/4) (from Ch. 111 1/2, par. 73.104)
Sec. 4. Withdrawal of funds; revocability of contract.
(a) Except as otherwise provided in this Act, monies in a trust established under Section 2 shall not be withdrawn until after the death of the beneficiary, unless sooner withdrawn and refunded to the purchaser as provided in this Section. The life insurance
policies or tax-deferred annuities shall not be surrendered until the death of
the beneficiary, unless sooner surrendered and repaid to the owner of the policy
purchased under or in connection with the pre-need contract or to his or her
legal representative. If, however, the agreement or series of agreements
provides for forfeiture and retention of any or all payments as and for
liquidated damages as provided in Section 6, then the trustee may withdraw
the deposits. In addition, nothing in this Section (i) prohibits the
change of depositary by the trustee and the transfer of trust funds
from one depositary to another or (ii) prohibits a contract purchaser who is or
may become eligible for public assistance under any applicable federal or
State law or local ordinance including, but not limited to, eligibility
under 24 C.F.R., Part 913 relating to family insurance under federal
Housing and Urban Development Policy from irrevocably waiving, in writing,
and renouncing the right to cancel a pre-need contract for funeral services
in an amount prescribed by rule of the
Department of Healthcare and Family Services.
No guaranteed price pre-need funeral contract may prohibit a purchaser
from making a contract irrevocable to the extent that federal law or
regulations require that such a contract be irrevocable for purposes of the
purchaser's eligibility for Supplemental Security Income benefits, Medicaid, or
another public assistance program, as permitted under federal law.
(b) If for any reason a seller or provider who has engaged in pre-need
sales has refused, cannot, or does not comply with the terms of the
pre-need contract within a reasonable time after he or she is required to
do so, the purchaser or his or her heirs or assigns or duly authorized
representative shall have the right to a refund of an amount equal
to the sales price paid for undelivered merchandise or
services
plus any amounts held in trust
attributable to the contract, within 30 days of the filing of a
sworn affidavit with the trustee setting forth the existence of the
contract and the fact of breach. A copy of this affidavit shall be
filed with the Comptroller and the seller. In the event a
seller
is prevented from performing by strike, shortage of materials,
civil disorder, natural disaster, or any like occurrence beyond the
control of the seller or provider, the seller or provider's time for
performance shall be extended by the length of the delay. Nothing in this
Section shall relieve the seller or provider from any liability for
non-performance of his or her obligations under the pre-need contract.
(c) After final payment on a pre-need contract, any
purchaser
may, prior to the death of the beneficiary and upon written demand to a seller,
demand that the
pre-need contract with the seller be terminated. The
seller shall, within 30
days, initiate a refund to the purchaser
of the entire amount held in trust attributable to
undelivered merchandise and unperformed services plus any amounts held in trust attributable to the contract
or
the cash surrender value of a life insurance policy
or tax-deferred annuity.
(c-5) If, after the death of the beneficiary, no funeral merchandise or services are provided or if the
funeral
is
conducted by another provider, the seller may keep no more than 10% of the
payments made under the pre-need contract or $300, whichever sum is less. The
remainder of the trust funds or insurance or annuity proceeds shall be
forwarded to the legal heirs of the deceased beneficiary or as determined by probate
action.
(d) The placement and retention of all or a portion of a casket,
combination
casket-vault, urn, or outer burial container comprised of materials which are
designed to withstand prolonged storage in the manner set forth in this
paragraph without adversely affecting the structural integrity or aesthetic
characteristics of such merchandise in a specific burial space in which the
person or persons for whose funeral or burial the merchandise was intended
has a right of interment, or the placement of the merchandise in a specific
mausoleum crypt or lawn crypt in which such person has a right of entombment,
or the placement of the merchandise in a specific niche in which such person
has a right of inurnment, or delivery to such person and retention by such
person until the time of need shall constitute actual delivery to the person
who originally paid the money under or in connection with said agreement or
series of agreements. Actual delivery shall eliminate, from and after the date
of actual delivery, any requirement under this Act to place or retain in trust
any funds received for the sale of such merchandise. The delivery, prior to
the time of need, of any funeral or burial merchandise in any manner other than
authorized by this Section shall not constitute actual delivery and shall not
eliminate any requirement under this Act to place or retain in trust any funds
received for the sale of such merchandise.
(Source: P.A. 95-331, eff. 8-21-07; 96-879, eff. 2-2-10.)
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