Bill Amendment: IL HB3102 | 2023-2024 | 103rd General Assembly
NOTE: For additional amemendments please see the Bill Drafting List
Bill Title: CEMETERIES-DISTRIBUTIONS
Status: 2023-03-28 - Added as Alternate Chief Co-Sponsor Sen. Bill Cunningham [HB3102 Detail]
Download: Illinois-2023-HB3102-House_Amendment_001.html
Bill Title: CEMETERIES-DISTRIBUTIONS
Status: 2023-03-28 - Added as Alternate Chief Co-Sponsor Sen. Bill Cunningham [HB3102 Detail]
Download: Illinois-2023-HB3102-House_Amendment_001.html
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1 | AMENDMENT TO HOUSE BILL 3102
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2 | AMENDMENT NO. ______. Amend House Bill 3102 by replacing | ||||||
3 | everything after the enacting clause with the following:
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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, 4.2, and 27 as follows:
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7 | (760 ILCS 100/2) (from Ch. 21, par. 64.2)
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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:
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11 | "Person" means any person, partnership, association, | ||||||
12 | corporation, or other
entity.
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13 | "Trustee" means any person authorized to hold funds under | ||||||
14 | this Act.
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15 | "Comptroller" means the Comptroller of the State of | ||||||
16 | Illinois.
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1 | "Care" means the maintenance of a cemetery and of the | ||||||
2 | lots, graves, crypts,
niches, family mausoleums, memorials, | ||||||
3 | and markers therein; including: (i)
the cutting
and trimming | ||||||
4 | of lawn, shrubs, and trees at reasonable intervals; (ii)
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5 | keeping in repair the drains, water lines, roads, buildings, | ||||||
6 | fences, and
other structures, in keeping with a well | ||||||
7 | maintained cemetery; (iii) maintenance of
machinery, tools, | ||||||
8 | and equipment for such care; (iv) compensation of
employees, | ||||||
9 | payment of insurance premiums, and reasonable payments for
| ||||||
10 | employees
pension and other benefits plans; and (v) to the | ||||||
11 | extent surplus income from
the
care fund is available, the | ||||||
12 | payment of overhead expenses necessary for such
purposes and | ||||||
13 | for maintaining necessary records of lot
ownership, transfers, | ||||||
14 | and burials.
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15 | "Care funds" as distinguished from receipts from annual | ||||||
16 | charges or gifts
for current or annual care, means any realty | ||||||
17 | or personalty impressed with a
trust by the terms of any gift, | ||||||
18 | grant, contribution, payment, legacy,
or pursuant to contract, | ||||||
19 | accepted by any cemetery authority
owning, operating, | ||||||
20 | controlling or managing a privately operated cemetery,
or by | ||||||
21 | any trustee or licensee, agent or custodian for the same, | ||||||
22 | under
Section 3 of this Act, and the amounts set aside under | ||||||
23 | Section 4 of this
Act, and any income accumulated therefrom, | ||||||
24 | where legally so directed by the
terms of the transaction by | ||||||
25 | which the principal was established.
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26 | "Cemetery" means any land or structure in this State |
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1 | dedicated to and
used, or intended to be used, for the | ||||||
2 | interment of human remains.
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3 | "Cemetery authority" means any person, firm, corporation, | ||||||
4 | trustee,
partnership, association or municipality owning, | ||||||
5 | operating, controlling or
managing a cemetery or holding lands | ||||||
6 | for burial grounds or burial purposes
in this State.
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7 | "Mausoleum crypt" means a space in a mausoleum used or | ||||||
8 | intended to be
used, above or under ground, to entomb human | ||||||
9 | remains.
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10 | "Family burying ground" means a cemetery in which no lots | ||||||
11 | are sold to
the public and in which interments are restricted | ||||||
12 | to a group of persons
related to each other by blood or | ||||||
13 | marriage.
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14 | "Fraternal cemetery" means a cemetery owned, operated, | ||||||
15 | controlled, or
managed by any fraternal organization or | ||||||
16 | auxiliary organizations thereof,
in which the sale of lots, | ||||||
17 | graves, crypts or niches is restricted
principally to its | ||||||
18 | members.
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19 | "Grave" means a space of ground in a cemetery, used, or | ||||||
20 | intended to be
used, for burial.
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21 | "Investment Company Act of 1940" means Title 15, of the | ||||||
22 | United States
Code, Sections 80a-1 to 80a-51, inclusive, as
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23 | amended.
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24 | "Investment Company" means any issuer (a) whose securities | ||||||
25 | are
purchasable only with care funds or trust funds, or both; | ||||||
26 | and (b) which is
an open and diversified management company as |
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1 | defined in and registered
under the "Investment Company Act of | ||||||
2 | 1940"; and (c) which has entered into
an agreement with the | ||||||
3 | Comptroller containing such provisions as the
Comptroller by | ||||||
4 | regulation reasonably requires for the proper administration
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5 | of this Act.
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6 | "Municipal cemetery" means a cemetery owned, operated, | ||||||
7 | controlled or
managed by any city, village, incorporated town, | ||||||
8 | township, county, or other
municipal corporation, political | ||||||
9 | subdivision, or instrumentality thereof
authorized by law to | ||||||
10 | own, operate, or manage a cemetery.
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11 | "Niche" means a space in a columbarium used or intended to | ||||||
12 | be used, for
inurnment of cremated human remains.
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13 | "Privately operated cemetery" means any entity that offers | ||||||
14 | interment rights,
entombment rights, or inurnment rights, | ||||||
15 | other than a
fraternal, municipal, State, federal or religious | ||||||
16 | cemetery or a family burying
ground.
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17 | "Religious cemetery" means a cemetery owned, operated, | ||||||
18 | controlled, or
managed by any recognized church, religious | ||||||
19 | society, association or
denomination, or by any cemetery | ||||||
20 | authority or any corporation
administering, or through which | ||||||
21 | is administered, the temporalities of any
recognized church, | ||||||
22 | religious society, association or denomination.
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23 | "State or federal cemetery" means a cemetery owned, | ||||||
24 | operated,
controlled, or managed by any State or the federal | ||||||
25 | government or any
political subdivision or instrumentality | ||||||
26 | thereof.
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1 | "Entombment right" means the right to place individual | ||||||
2 | human remains or
individual cremated human remains in a | ||||||
3 | specific mausoleum crypt or lawn
crypt selected by the | ||||||
4 | consumer for use as a final resting place.
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5 | "Interment right" means the right to place individual | ||||||
6 | human remains or
cremated human remains in a specific | ||||||
7 | underground location selected by the
consumer for use as a | ||||||
8 | final resting place.
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9 | "Inurnment right" means the right to place individual | ||||||
10 | cremated human
remains in a specific niche selected by the | ||||||
11 | consumer for use as a final
resting place.
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12 | "Lawn crypt" means a permanent underground crypt usually | ||||||
13 | constructed of
reinforced concrete or similar material | ||||||
14 | installed in multiple units for the
entombment of human | ||||||
15 | remains.
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16 | "Imputed value" means the retail price of comparable | ||||||
17 | rights within the
same or similar area of the cemetery.
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18 | "Average fair market value" means the average of the fair | ||||||
19 | market values of assets held by the fund on the first day of | ||||||
20 | the current fiscal year and the first day of each of the 2 | ||||||
21 | preceding fiscal years, or the average of the fair market | ||||||
22 | value for the entire term of the fund if there are less than 2 | ||||||
23 | preceding years. | ||||||
24 | "Total return percentage" means the annual percentage | ||||||
25 | selected by the fund's trustee or the cemetery authority, but | ||||||
26 | no less than 3% and no more than 5% of the average fair market |
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1 | value of the fund. | ||||||
2 | "Net income" means: | ||||||
3 | (1) ordinary income, which means all net interest and | ||||||
4 | dividends, after fees and taxes taken from income, but | ||||||
5 | does not include any capital gains from the investment of | ||||||
6 | such care funds; or | ||||||
7 | (2)
total return distribution, which means the | ||||||
8 | distribution of funds from the care fund based on the | ||||||
9 | average fair market value of the fund assets multiplied by | ||||||
10 | the total return percentage. | ||||||
11 | (Source: P.A. 92-651, eff. 7-11-02 .)
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12 | (760 ILCS 100/3) (from Ch. 21, par. 64.3)
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13 | Sec. 3. Gifts and contributions - Trust funds. Any | ||||||
14 | cemetery authority is
hereby authorized and empowered to | ||||||
15 | accept any gift, grant, contribution,
payment, legacy, or | ||||||
16 | pursuant to contract, any sum of money, funds, securities
or | ||||||
17 | property of any kind, or the income or avails thereof, and to | ||||||
18 | establish a
trust fund to hold the same in perpetuity for the
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19 | care of its cemetery, or for the care of any lot, grave, crypt | ||||||
20 | or niche in its
cemetery; or for the special care of any lot, | ||||||
21 | grave, crypt or niche or of any
family mausoleum or memorial, | ||||||
22 | marker, or monument in its cemetery.
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23 | The cemetery authority shall act as trustee of all amounts | ||||||
24 | received for
care until they have been deposited into the | ||||||
25 | trust fund established under this
Section. The cemetery |
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1 | authority may continue to be the trustee of up to
$500,000 of | ||||||
2 | care funds that have been deposited into the trust fund, but | ||||||
3 | the
cemetery authority must retain an independent trustee for | ||||||
4 | any amount of care
funds held in trust in excess of that | ||||||
5 | $500,000. A cemetery authority holding
care funds in excess of | ||||||
6 | $500,000 on the effective date of this amendatory Act
of 1996 | ||||||
7 | shall have 36 months to retain an independent trustee for the | ||||||
8 | excess
amounts held in trust; any other cemetery authority | ||||||
9 | must retain an independent
trustee for its care funds in | ||||||
10 | excess of $500,000 as soon as may be practical.
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11 | No gift, grant, legacy, payment or other contribution
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12 | shall be invalid by reason of any indefiniteness or | ||||||
13 | uncertainty as to the
beneficiary designated in the instrument | ||||||
14 | creating the gift, grant, legacy,
payment or other | ||||||
15 | contribution. If any gift, grant, legacy, payment or
other | ||||||
16 | contribution consists of non-income producing
property, the | ||||||
17 | cemetery authority accepting it is authorized and empowered
to | ||||||
18 | sell such property and to invest the funds obtained in | ||||||
19 | accordance with
the provisions of the next succeeding | ||||||
20 | paragraph.
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21 | The care funds authorized by this Section and provided for | ||||||
22 | in Section 4 of
this Act shall be held intact and, unless | ||||||
23 | otherwise restricted by the terms of
the gift, grant, legacy, | ||||||
24 | contribution, payment, contract or other payment, as
to | ||||||
25 | investments made after June 11, 1951 the trustee of the care | ||||||
26 | funds of the cemetery authority, in
acquiring, investing, |
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1 | reinvesting, exchanging, retaining, selling and
managing | ||||||
2 | property for any such trust, shall exercise the judgment and | ||||||
3 | care
under the circumstances then prevailing, which persons of | ||||||
4 | prudence, discretion
and intelligence exercise in the | ||||||
5 | management of their own affairs, not in
regard to speculation | ||||||
6 | but in regard to the permanent disposition of their
funds, | ||||||
7 | considering the probable income as well as the probable safety | ||||||
8 | of
their capital. Within the limitations of the foregoing | ||||||
9 | standard, the trustee of the care funds of the cemetery
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10 | authority is authorized to acquire and retain every kind of | ||||||
11 | property, real,
personal or mixed, and every kind of | ||||||
12 | investment, including specifically but
without limiting the | ||||||
13 | generality of the foregoing, bonds, debentures and
other | ||||||
14 | corporate obligations, preferred or common stocks and real | ||||||
15 | estate
mortgages, which persons of prudence, discretion and | ||||||
16 | intelligence acquire or
retain for their own account. Within | ||||||
17 | the limitations of the foregoing
standard,
the trustee is | ||||||
18 | authorized to retain property
properly acquired, without | ||||||
19 | limitation as to time and without regard to its
suitability | ||||||
20 | for original purchase. The care funds authorized by this
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21 | Section may be commingled with other trust funds received by | ||||||
22 | such cemetery
authority for the care of its cemetery or for the | ||||||
23 | care or special care of
any lot, grave, crypt, niche, private | ||||||
24 | mausoleum, memorial, marker, or
monument in its cemetery, | ||||||
25 | whether received by gift, grant, legacy,
contribution, | ||||||
26 | payment, contract or other conveyance heretofore or hereafter
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1 | made to such cemetery authority. Such care funds may be | ||||||
2 | invested with
common trust funds as provided in the The Common | ||||||
3 | Trust Fund Act. The net income
only from the investment of such | ||||||
4 | care funds
shall be allocated and used for the purposes | ||||||
5 | specified in the transaction
by which the principal was | ||||||
6 | established in the proportion that each
contribution bears to | ||||||
7 | the entire sum invested.
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8 | (Source: P.A. 89-615, eff. 8-9-96 .)
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9 | (760 ILCS 100/3.1 new) | ||||||
10 | Sec. 3.1. Master trust fund. For the purposes of | ||||||
11 | collective investment and administration, a trustee may apply | ||||||
12 | to the Comptroller to establish a master trust fund in which | ||||||
13 | deposits are made pursuant to the provisions of this Act. The | ||||||
14 | operation of the master trust fund shall be subject to the | ||||||
15 | provisions of this Act and rules applicable to this Act. The | ||||||
16 | master trust fund shall be subject to the following | ||||||
17 | requirements: | ||||||
18 | (1) it shall include only cemetery authorities located | ||||||
19 | in this State that have given written consent to | ||||||
20 | participate in a master trust fund; | ||||||
21 | (2) it must be administered by an independent trustee; | ||||||
22 | (3) the trustee of a master trust fund shall maintain | ||||||
23 | separate records of principal and income for each | ||||||
24 | participant in the master trust fund; | ||||||
25 | (4) the income and associated expenses of the master |
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1 | trust fund shall be divided among the participants in the | ||||||
2 | master trust fund based on the proportion that each | ||||||
3 | participant contributes to the balance of the master trust | ||||||
4 | fund; and | ||||||
5 | (5) the trustee shall make accounting records of the | ||||||
6 | trust, including a report that will include itemized | ||||||
7 | separate accounting for each participant in the master | ||||||
8 | trust fund, available for review and audit upon request by | ||||||
9 | the Comptroller.
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10 | (760 ILCS 100/4) (from Ch. 21, par. 64.4)
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11 | Sec. 4. Care funds; deposits; investments. | ||||||
12 | Whenever a cemetery authority owning, operating, | ||||||
13 | controlling or
managing a privately operated cemetery accepts | ||||||
14 | care funds, either in
connection with the sale or giving away | ||||||
15 | at an imputed value of an
interment right, entombment right or | ||||||
16 | inurnment right, or in pursuance
of a contract, or whenever, | ||||||
17 | as a condition precedent to the purchase or
acceptance of an | ||||||
18 | interment right, entombment right or inurnment right,
such | ||||||
19 | cemetery authority requires the establishment of a care fund | ||||||
20 | or a
deposit in an already existing care fund, then such | ||||||
21 | cemetery authority
shall execute and deliver to the person | ||||||
22 | from whom received an instrument in
writing which shall | ||||||
23 | specifically state: (a) the nature and extent of the
care to be | ||||||
24 | furnished, and (b) that such care shall be furnished only in so
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25 | far as the net income derived from the amount deposited in |
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1 | trust will
permit (the income from the amount so deposited, | ||||||
2 | less necessary
expenditures of administering the trust, shall | ||||||
3 | be deemed the net income) ,
and (c) that not less than the | ||||||
4 | following amounts will be set aside and
deposited in trust:
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5 | 1. For interment rights, $1 per square foot of the | ||||||
6 | space sold or 15% of
the sales price or imputed value, | ||||||
7 | whichever is the greater, with a minimum
of $25 for each | ||||||
8 | individual interment right.
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9 | 2. For entombment rights, not less than 10% of the | ||||||
10 | sales
price or imputed value with a minimum of $25 for each
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11 | individual entombment right.
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12 | 3. For inurnment rights, not less than 10% of the | ||||||
13 | sales
price or imputed value with a minimum of $15 for each
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14 | individual inurnment right.
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15 | 4. For any transfer of interment rights, entombment | ||||||
16 | rights, or
inurnment rights recorded in the records of the | ||||||
17 | cemetery authority,
excepting only transfers between | ||||||
18 | members of the immediate family of the
transferor, a | ||||||
19 | minimum of $25 for each such right transferred. For the
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20 | purposes of this paragraph "immediate family of the | ||||||
21 | transferor" means the
spouse, parents, grandparents, | ||||||
22 | children, grandchildren, and siblings of the
transferor.
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23 | 5. Upon an interment, entombment, or inurnment in a | ||||||
24 | grave, crypt, or
niche in which rights of interment, | ||||||
25 | entombment, or inurnment were
originally acquired from a | ||||||
26 | cemetery authority prior to January 1, 1948, a
minimum of |
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1 | $25 for each such right exercised.
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2 | 6. For the special care of any lot, grave, crypt, or | ||||||
3 | niche or of a
family mausoleum, memorial, marker, or | ||||||
4 | monument, the full amount received.
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5 | Such setting aside and deposit shall be made by such | ||||||
6 | cemetery authority
not later than 30 days after the close of | ||||||
7 | the month in which
the cemetery authority gave away for an | ||||||
8 | imputed value or
received the final payment on the purchase | ||||||
9 | price of interment rights,
entombment rights, or inurnment | ||||||
10 | rights, or received the final payment
for the general or | ||||||
11 | special care of a lot,
grave, crypt or niche or of a family | ||||||
12 | mausoleum, memorial, marker or
monument; and such amounts | ||||||
13 | shall be held by
the trustee of the care funds of such cemetery | ||||||
14 | authority in trust in
perpetuity for the specific purposes | ||||||
15 | stated in said written instrument.
For all care funds received | ||||||
16 | by a cemetery authority, except for care
funds received by a | ||||||
17 | cemetery authority pursuant to a specific gift, grant,
| ||||||
18 | contribution, payment, legacy, or contract that are subject to | ||||||
19 | investment
restrictions more restrictive than the investment | ||||||
20 | provisions set forth in
this Act, and except for care funds | ||||||
21 | otherwise subject to a trust agreement
executed by a person or | ||||||
22 | persons responsible for transferring the specific
gift, grant, | ||||||
23 | contribution, payment, or legacy to the cemetery authority
| ||||||
24 | that contains investment restrictions more restrictive than | ||||||
25 | the investment
provisions set forth in this Act, the cemetery | ||||||
26 | authority may, without the
necessity of having to obtain prior |
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1 | approval from any court in this State,
designate a new trustee | ||||||
2 | in accordance with this Act and invest the care
funds in | ||||||
3 | accordance with this Section, notwithstanding any contrary
| ||||||
4 | limitation contained in the trust agreement.
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5 | Any such cemetery authority engaged in selling or giving | ||||||
6 | away at an
imputed value interment rights, entombment rights | ||||||
7 | or inurnment rights, in
conjunction with the selling or giving | ||||||
8 | away at an imputed value any other
merchandise or services not | ||||||
9 | covered by this Act, shall be prohibited from
increasing the | ||||||
10 | sales price or imputed value of those items not requiring a
| ||||||
11 | care fund deposit under this Act with the purpose of | ||||||
12 | allocating a lesser
sales price or imputed value to items that | ||||||
13 | require a care fund deposit.
| ||||||
14 | In the event any sale that would require a deposit to such | ||||||
15 | cemetery
authority's care fund is made by a cemetery authority | ||||||
16 | on an installment
basis, and the installment contract is | ||||||
17 | factored, discounted, or sold to a
third party, the cemetery | ||||||
18 | authority shall deposit the amount due to
the care fund within | ||||||
19 | 30 days after the close of the month in which the
installment | ||||||
20 | contract was factored, discounted, or sold. If, subsequent to
| ||||||
21 | such deposit, the purchaser defaults on the contract such that | ||||||
22 | no care fund
deposit on that contract would have been | ||||||
23 | required, the cemetery authority may
apply the amount | ||||||
24 | deposited as a credit against future required deposits.
| ||||||
25 | The trust authorized by this Section shall be a single | ||||||
26 | purpose trust
fund. In the event of the seller's bankruptcy, |
| |||||||
| |||||||
1 | insolvency, or assignment
for the benefit of creditors, or an | ||||||
2 | adverse judgment, the trust funds shall
not be available to | ||||||
3 | any creditor as assets of the cemetery authority or to pay
any | ||||||
4 | expenses of any bankruptcy or similar proceeding, but shall be | ||||||
5 | retained
intact to provide for the future maintenance of the | ||||||
6 | cemetery. Except in an
action by the Comptroller to revoke a | ||||||
7 | license issued pursuant
to this Act and for creation of a | ||||||
8 | receivership as provided in this Act, the
trust shall not be | ||||||
9 | subject to judgment, execution, garnishment, attachment,
or | ||||||
10 | other seizure by process in bankruptcy or otherwise, nor to | ||||||
11 | sale, pledge,
mortgage, or other alienation, and shall not be | ||||||
12 | assignable except as
approved by the Comptroller. The changes | ||||||
13 | made by this amendatory Act of
the 91st General Assembly are | ||||||
14 | intended to clarify existing law regarding the
inability of | ||||||
15 | licensees to pledge the trust.
| ||||||
16 | (Source: P.A. 91-7, eff. 6-1-99 .)
| ||||||
17 | (760 ILCS 100/4.1 new) | ||||||
18 | Sec. 4.1. Distributions. | ||||||
19 | (a) A cemetery authority may take distributions from its | ||||||
20 | fund either by distributing: | ||||||
21 | (1) ordinary income; or | ||||||
22 | (2) total return distribution. | ||||||
23 | (b) If a cemetery authority takes distributions from its | ||||||
24 | fund by total return distribution, the following apply: | ||||||
25 | (1) Fees and taxes may be paid from corpus. |
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1 | (2) If the fees paid by the care fund exceed 2% of the | ||||||
2 | fair market value at the end of a given year, the amount in | ||||||
3 | excess shall be paid from the distributions. | ||||||
4 | (c) A cemetery authority may select a distribution method | ||||||
5 | by delivering written instructions to the trustee of the fund | ||||||
6 | no later than 30 days before the beginning of the calendar | ||||||
7 | year. The distribution method and the distribution rate | ||||||
8 | selected shall remain in effect unless the cemetery notifies | ||||||
9 | the trustee of its desire to effect a change, application for | ||||||
10 | the change has been submitted to the Comptroller as required | ||||||
11 | in Section 4.2, and copies of the documentation are submitted | ||||||
12 | to the trustee. If the trustee does not receive written | ||||||
13 | instructions from the cemetery authority informing the trustee | ||||||
14 | of the method of calculating chosen, then the trustee shall | ||||||
15 | calculate and distribute based on the ordinary income | ||||||
16 | distribution method. The trustee shall distribute income to | ||||||
17 | the cemetery authority at least annually or in more frequent | ||||||
18 | installments as agreed to by the trustee and cemetery | ||||||
19 | authority.
| ||||||
20 | (760 ILCS 100/4.2 new) | ||||||
21 | Sec. 4.2. Application for total return distribution and | ||||||
22 | restrictions. | ||||||
23 | (a) An application for the implementation of the total | ||||||
24 | return distribution method shall be submitted to the | ||||||
25 | Comptroller at least 120 days before the effective date of the |
| |||||||
| |||||||
1 | election to receive total return distribution. In addition to | ||||||
2 | submitting payment of a reasonable application fee, the | ||||||
3 | cemetery authority shall provide the Comptroller with all of | ||||||
4 | the following: | ||||||
5 | (1) A written investment policy. The investment goals | ||||||
6 | shall be to achieve principal growth through allowable | ||||||
7 | investments for care fund trusts with a secondary goal of | ||||||
8 | achieving current income. | ||||||
9 | (2) A care fund trust agreement that clearly shows the | ||||||
10 | selection of the total return distribution method. | ||||||
11 | (3) A written distribution policy establishing the | ||||||
12 | total return percentage and initial estimated average fair | ||||||
13 | market value, using the most recent month-end balances as | ||||||
14 | the estimate for the current year, signed by the cemetery | ||||||
15 | authority or trustee, along with supporting documentation | ||||||
16 | and additional information as may be required by the rules | ||||||
17 | adopted under this Act. | ||||||
18 | (b) The application shall be considered approved unless | ||||||
19 | the cemetery authority or trustee is notified otherwise by the | ||||||
20 | Comptroller within 90 days of receipt. The notification shall | ||||||
21 | contain details of the information needed to remedy any | ||||||
22 | deficiencies in the application. | ||||||
23 | (c) The total return percentage elected may be reduced but | ||||||
24 | may not be increased unless additional application is made to | ||||||
25 | the Comptroller with documentation demonstrating the rate of | ||||||
26 | return of the care funds over the last 3 years to support an |
| |||||||
| |||||||
1 | increase in the percentage. The total return distribution | ||||||
2 | shall not exceed 5% of the average fair market value of the | ||||||
3 | fund assets in a given calendar year. | ||||||
4 | (d) A cemetery authority that has elected the total return | ||||||
5 | distribution method may elect to reconvert to the ordinary | ||||||
6 | income distribution method by submitting written documentation | ||||||
7 | to the Comptroller in support of the reconversion, including a | ||||||
8 | copy of the trust agreement, notification on the proposed | ||||||
9 | effective date of the reconversion, and any additional | ||||||
10 | information required by the Comptroller. | ||||||
11 | (e) The Comptroller may take corrective measures, | ||||||
12 | including reducing the total return percentage or requiring a | ||||||
13 | distribution of only ordinary income for a year under one or | ||||||
14 | more of the following circumstances: | ||||||
15 | (1) if the average fair market value of the care fund | ||||||
16 | from one 3-year period to the previous 3-year period | ||||||
17 | declines by 10% or more; | ||||||
18 | (2) if the average fair market value of the care fund | ||||||
19 | declines by more than 30% during a rolling 5-year period; | ||||||
20 | (3) if the fair market value of the fund at the | ||||||
21 | beginning of a fiscal year is less than 80% of the fair | ||||||
22 | market value of the fund on the first day of the fiscal | ||||||
23 | year when the care fund started making distributions based | ||||||
24 | on the total return distribution method; | ||||||
25 | (4) if there is an uncorrected care fund deficiency as | ||||||
26 | determined by the Comptroller's review of the annual |
| |||||||
| |||||||
1 | report; or | ||||||
2 | (5) if the Comptroller determines that the trustee is | ||||||
3 | not able to demonstrate sufficient knowledge and expertise | ||||||
4 | regarding the effective implementation of distributing | ||||||
5 | income for the maintenance of the cemetery using the total | ||||||
6 | return distribution method. | ||||||
7 | (f) The Comptroller may evaluate the care fund conditions | ||||||
8 | and choose not to impose corrective measures if the | ||||||
9 | Comptroller finds that: | ||||||
10 | (1) the reasons are due to unusual or temporary | ||||||
11 | factors not within the control of the cemetery authority | ||||||
12 | or the trustee and that could not have been reasonably | ||||||
13 | anticipated; | ||||||
14 | (2) the current investment policy of the fund is | ||||||
15 | reasonably designed to protect the fund from further | ||||||
16 | declines in fair market value; or | ||||||
17 | (3) the exception appears to be both necessary and | ||||||
18 | appropriate for the continued protections of the care | ||||||
19 | fund.
| ||||||
20 | (760 ILCS 100/5) (from Ch. 21, par. 64.5)
| ||||||
21 | Sec. 5. No cemetery authority, nor any agent, servant, or | ||||||
22 | employee of it,
nor any other person, shall advertise, | ||||||
23 | represent, guarantee, promise, or
contract that perpetual | ||||||
24 | care, permanent care, perpetual or permanent
maintenance, care | ||||||
25 | forever, continuous care, eternal care, everlasting care,
or |
| |||||||
| |||||||
1 | any similar or equivalent care, or care for any number of years | ||||||
2 | of any
cemetery or of any lot, grave, crypt or niche, or of any | ||||||
3 | family mausoleum,
memorial, marker, or monument, will be | ||||||
4 | furnished: Provided, however, that
any cemetery authority may | ||||||
5 | advertise, represent, guarantee, promise or
contract that care | ||||||
6 | will be furnished from the net income only derived from
funds | ||||||
7 | held in trust as provided in Sections Section 3 and 4 of this | ||||||
8 | Act; and may
advertise, represent, guarantee, promise or | ||||||
9 | contract that care will be
given any lot, grave, crypt, or | ||||||
10 | niche, or any family mausoleum, memorial,
marker, or monument | ||||||
11 | for any definite number of years, such care to be
furnished | ||||||
12 | under a contract providing that the principal of the amount | ||||||
13 | paid
under the contract shall be used to furnish the care and | ||||||
14 | further providing
specifically the care to be given and the | ||||||
15 | number of years for which it is
to be given.
| ||||||
16 | (Source: Laws 1947, p. 338 .)
| ||||||
17 | (760 ILCS 100/14) (from Ch. 21, par. 64.14)
| ||||||
18 | Sec. 14.
The Comptroller may at any time investigate the | ||||||
19 | cemetery business
of every licensee with respect to its care | ||||||
20 | funds. The Comptroller shall
examine at least annually every | ||||||
21 | licensee who has holds $250,000 or more in
its care funds. For | ||||||
22 | that purpose, the Comptroller shall have free access
to the | ||||||
23 | office and places of business and to such records of all
| ||||||
24 | licensees and of all trustees of the care funds of all | ||||||
25 | licensees as
shall relate to the acceptance, use and |
| |||||||
| |||||||
1 | investment of care funds. The
Comptroller may require the | ||||||
2 | attendance of and examine under oath all
persons whose | ||||||
3 | testimony he may require relative to such business and in
such | ||||||
4 | cases the Comptroller or any qualified representative of the
| ||||||
5 | Comptroller whom the Comptroller may designate, may administer | ||||||
6 | oaths to
all such persons called as witnesses, and the | ||||||
7 | Comptroller, or any such
qualified representative of the | ||||||
8 | Comptroller, may conduct such
examinations. The cost of an | ||||||
9 | initial examination
shall be borne by the
cemetery authority | ||||||
10 | if it has $10,000 or more in such fund; otherwise, by
the | ||||||
11 | Comptroller. The charge made by the Comptroller for such | ||||||
12 | examination
shall be based upon the total amount of care funds | ||||||
13 | held by the cemetery
authority as of the end of the calendar or | ||||||
14 | fiscal year for which a
report is required by Section 12 of | ||||||
15 | this Act and shall be in accordance
with the following | ||||||
16 | schedule:
| ||||||
17 | less than $10,000 .........................no charge;
| ||||||
18 | $10,000 or more but less than
| ||||||
19 | $50,000 .............................................$10;
| ||||||
20 | $50,000 or more but less than
| ||||||
21 | $100,000 ............................................$40;
| ||||||
22 | $100,000 or more but less than
| ||||||
23 | $250,000 ............................................$80;
| ||||||
24 | $250,000 or more ....................................$100.
| ||||||
25 | Any licensee which is not required to be examined annually | ||||||
26 | shall submit
an annual report to the Comptroller containing |
| |||||||
| |||||||
1 | such information as the
Comptroller reasonably may request.
| ||||||
2 | The Comptroller may order additional audits or | ||||||
3 | examinations as he or she
may deem necessary or advisable to | ||||||
4 | ensure the safety and stability of the trust
funds and to | ||||||
5 | ensure compliance with this Act. These additional audits or
| ||||||
6 | examinations shall only be made after good cause is | ||||||
7 | established by the
Comptroller in the written order. The | ||||||
8 | grounds for ordering these additional
audits or examinations | ||||||
9 | may include, but shall not be limited to:
| ||||||
10 | (1) material and unverified changes or fluctuations in | ||||||
11 | trust balances;
| ||||||
12 | (2) the licensee changing trustees more than twice in | ||||||
13 | any 12-month
period;
| ||||||
14 | (3) any withdrawals or attempted withdrawals from the | ||||||
15 | trusts in violation
of this Act; or
| ||||||
16 | (4) failure to maintain or produce documentation | ||||||
17 | required by this Act for
deposits into trust accounts or | ||||||
18 | trust investment activities.
| ||||||
19 | Prior to ordering an additional audit or examination, the | ||||||
20 | Comptroller shall
request the licensee to respond and comment | ||||||
21 | upon the factors identified by the
Comptroller as warranting | ||||||
22 | the subsequent examination or audit. The licensee
shall have | ||||||
23 | 30 days to provide a response to the Comptroller. If the
| ||||||
24 | Comptroller decides to proceed with the additional examination | ||||||
25 | or audit, the
licensee shall bear the full cost of that | ||||||
26 | examination or audit, up to a maximum
of $7,500. The
|
| |||||||
| |||||||
1 | Comptroller may elect to pay for the examination or audit and | ||||||
2 | receive
reimbursement from the licensee. Payment of the costs | ||||||
3 | of the examination or
audit by a licensee shall be a condition | ||||||
4 | of receiving or maintaining a license
under this Act. All | ||||||
5 | moneys received by the Comptroller for examination or
audit | ||||||
6 | fees shall be maintained in a separate account to be known as | ||||||
7 | the
Comptroller's Administrative
Fund. This Fund,
subject to | ||||||
8 | appropriation by the General Assembly, may
be utilized by the | ||||||
9 | Comptroller for
enforcing this Act and other purposes that may | ||||||
10 | be authorized by law.
| ||||||
11 | (Source: P.A. 89-615, eff. 8-9-96 .)
| ||||||
12 | (760 ILCS 100/15a) (from Ch. 21, par. 64.15a)
| ||||||
13 | Sec. 15a.
Where any cemetery authority owning, operating, | ||||||
14 | controlling or
managing a privately operated cemetery or any | ||||||
15 | trustee for the same has
accepted care funds within the | ||||||
16 | meaning of this Act, and is considered abandoned or seeks | ||||||
17 | dissolution dissolution is
sought by such cemetery authority | ||||||
18 | in any manner, by resolution of such
cemetery authority, or | ||||||
19 | the trustees thereof, notice shall be given to the
Comptroller | ||||||
20 | of such intention to dissolve, and proper disposition shall be
| ||||||
21 | made of the care funds so held for the general benefit of such | ||||||
22 | lot owners
by or for the benefit of such cemetery authority, as | ||||||
23 | provided by law, or in
accordance with the trust provisions of | ||||||
24 | any gift, grant, contribution,
payment, legacy or pursuant to | ||||||
25 | any contract whereby such funds were
created. The Comptroller |
| |||||||
| |||||||
1 | represented by the Attorney General may apply to
the circuit | ||||||
2 | court for the appointment of a receiver, trustee, successor in
| ||||||
3 | trust, or for directions of such court as to the proper | ||||||
4 | disposition to be
made of such care funds, to the end that the | ||||||
5 | uses and purposes for which
such trust or care funds were | ||||||
6 | created may be accomplished. Where no such receiver is | ||||||
7 | available, the circuit court may order a willing local | ||||||
8 | municipality, township, county, or city to take over the | ||||||
9 | cemetery. Any existing deed or care funds may be conveyed or | ||||||
10 | transferred to the unit of local government. If there is no | ||||||
11 | party available to convey the deed or transfer the care funds, | ||||||
12 | then a judicial deed and court order may be obtained in the | ||||||
13 | county in which the cemetery is located, and such deed or other | ||||||
14 | writing, if it relates to land, shall promptly, after its | ||||||
15 | execution by a judge or the sheriff, be recorded in the | ||||||
16 | recorder's office of the county wherein the land is situated. | ||||||
17 | Any cemetery taken over by a local municipality, township, | ||||||
18 | county, or city shall be considered a municipal cemetery for | ||||||
19 | the purposes of this Act.
| ||||||
20 | (Source: P.A. 87-747; 88-477 .)
| ||||||
21 | (760 ILCS 100/27 new) | ||||||
22 | Sec. 27. Dedications and visitations on Sunday. It shall | ||||||
23 | be unlawful for any person to restrain, prohibit, or interfere | ||||||
24 | with the burial of a decedent whose time of death and religious | ||||||
25 | tenets or beliefs necessitate burial on a Sunday or legal |
| |||||||
| |||||||
1 | holiday or prohibit in any manner, dedications of monuments or | ||||||
2 | headstones, family visitations, or visitations to veterans' | ||||||
3 | memorials on a Sunday or legal holiday. Nothing in this | ||||||
4 | Section shall require any maintenance staff or burial | ||||||
5 | professionals to be present on the day of such dedications.
| ||||||
6 | (760 ILCS 100/25 rep.) | ||||||
7 | Section 10. The Cemetery Care Act is amended by repealing | ||||||
8 | Section 25.
| ||||||
9 | Section 99. Effective date. This Act takes effect January | ||||||
10 | 1, 2025.".
|