|
| Public Act 097-0593
|
| SB0675 Enrolled | LRB097 04438 RPM 44477 b |
|
|
AN ACT concerning regulation.
|
Be it enacted by the People of the State of Illinois, |
represented in the General Assembly:
|
Section 5. The Illinois Funeral or Burial Funds Act is |
amended by changing Sections 2, 3, and 3a-5 as follows:
|
(225 ILCS 45/2) (from Ch. 111 1/2, par. 73.102)
|
Sec. 2.
(a) If a purchaser selects a trust arrangement to |
fund the
pre-need contract, all trust deposits as determined by |
Section 1b shall be made
within 30 days of receipt.
|
(b) A trust established under this Act must be maintained |
with a corporate fiduciary as defined in Section 1-5.05 of the |
Corporate Fiduciary Act or with a foreign corporate fiduciary |
recognized by Article IV of the Corporate Fiduciary Act.
|
(c) Trust agreements and amendments to the trust agreements |
used to
fund a pre-need contract shall be filed with the |
Comptroller.
|
(d) (Blank).
|
(e) A seller or provider shall furnish to the trustee and |
depositary the
name of each payor and the amount of payment on |
each such account for which
deposit is being so made. Nothing |
shall prevent the trustee from commingling the
deposits in any |
such trust fund for purposes of its management and the
|
investment of its funds as provided in the Common Trust Fund |
|
Act. In addition,
multiple trust funds maintained under this |
Act may be commingled or commingled
with other funeral or |
burial related trust funds if all record keeping
requirements |
imposed by law are met.
|
(f) (Blank).
|
(g) Upon no less than 30 days prior notice to the |
Comptroller, the seller may change
the trustee of
the fund. |
Failure to provide the Comptroller with timely prior notice is |
an intentional violation of this Act. |
(h) A trustee shall at least annually furnish to each |
purchaser a statement containing: (1) the receipts, |
disbursements, and inventory of the trust, including an |
explanation of any fees or expenses charged by the trustee |
under Section 5 of this Act or otherwise, (2) an explanation of |
the purchaser's right to a refund, if any, under this Act, and |
(3) identifying the primary regulator of the trust as a |
corporate fiduciary under state or federal law.
|
(Source: P.A. 96-879, eff. 2-2-10.)
|
(225 ILCS 45/3) (from Ch. 111 1/2, par. 73.103)
|
Sec. 3. Licensing.
|
(a) No person, firm, partnership, association or |
corporation may act as
seller without first securing from the |
State Comptroller a
license to
so act. Application for such |
license shall be in writing, signed by the
applicant and duly |
verified on forms furnished by the Comptroller. Each
|
|
application shall contain at least the following:
|
(1) The full name and
address (both residence and place |
of business) of the applicant, and
every member, officer |
and director thereof if the applicant is a firm,
|
partnership, association, or corporation, and of every |
shareholder
holding
more than 10% of the corporate stock if |
the applicant is a corporation;
|
(2) A statement of the applicant's
assets and |
liabilities;
|
(3) The name and address of the applicant's principal
|
place of business at which the books, accounts, and
records |
shall be available for examination by the
Comptroller as |
required by this Act;
|
(4) The names and addresses of the applicant's branch
|
locations at which pre-need sales shall be conducted and
|
which shall operate under the same license number as the
|
applicant's principal place of business;
|
(5) For each individual listed under item (1) above, a
|
detailed statement of the individual's business
experience |
for the 10 years immediately preceding the
application; any |
present or prior connection between the
individual and any |
other person engaged in pre-need
sales; any felony or |
misdemeanor convictions for which
fraud was an essential |
element; any charges or
complaints lodged against the |
individual for which fraud
was an essential element and |
which resulted in civil or
criminal litigation; any failure |
|
of the individual to
satisfy an enforceable judgment |
entered against him
based upon fraud; and any other |
information requested by
the Comptroller relating to past |
business practices of
the individual. Since the |
information required by this
item (5) may be confidential |
or contain proprietary
information, this information shall |
not be available to
other licensees or the general public |
and shall be used
only for the lawful purposes of the |
Comptroller in
enforcing this Act;
|
(6) The name of the trustee and, if applicable, the
|
names of the advisors to the trustee, including a copy
of |
the proposed trust agreement under which the trust
funds |
are to be held as required by this Act; and
|
(7) Such other information as the Comptroller may
|
reasonably require in order to determine the
qualification |
of the applicant to be licensed under this
Act.
|
(b) Applications for
license shall be accompanied
by a |
fidelity bond executed by the applicant and a surety company
|
authorized to do business in this State or an irrevocable, |
unconditional
letter of credit issued by a bank, credit union, |
or trust company authorized to
do business in the State of |
Illinois, as approved by the State Comptroller, in
such amount |
not exceeding $10,000 as the Comptroller may require. If, after
|
notice and an opportunity to be heard, it
has been determined |
that a licensee has violated this Act within the past 5
|
calendar years, the Comptroller may require an additional bond |
|
or letter of credit
from the licensee from time to time in |
amounts equal to one-tenth of such trust
funds, which bond or |
letter of credit shall run to the Comptroller for the use
and |
benefit of the beneficiaries of such trust funds.
|
The licensee shall keep accurate accounts, books and |
records in this State,
at the principal place of business |
identified in the
licensee's license application or as |
otherwise approved by
the Comptroller in writing,
of
all |
transactions, copies of all pre-need contracts, trust |
agreements, and other
agreements, dates and amounts of payments |
made and accepted thereon, the names
and addresses of the |
contracting parties, the persons for whose benefit such
funds |
are accepted, and the names of the depositaries of such funds.
|
Each licensee shall maintain the documentation for a period
of |
3 years after the licensee has fulfilled his obligations
under |
the pre-need contract. Additionally, for a period
not to exceed |
6 months after the performance of all terms
in a pre-need sales |
contract, the licensee shall maintain
copies of the contract at |
the licensee branch location
where the contract was entered or |
at some other location agreed to by the
Comptroller in writing.
|
If an
insurance policy or tax-deferred annuity is used to fund |
the pre-need contract,
the licensee under this Act shall keep |
and maintain accurate accounts, books,
and records in this |
State, at the principal place of business identified in
the
|
licensee's application or as otherwise approved by the
|
Comptroller in writing,
of all insurance policies and |
|
tax-deferred annuities
used to fund the pre-need contract, the |
name and address of insured, annuitant,
and initial |
beneficiary, and the name and address of the insurance company
|
issuing the policy or annuity. If a life insurance policy or |
tax-deferred
annuity is used to fund a pre-need contract, the |
licensee shall notify the
insurance company of the name of each |
pre-need contract purchaser and the
amount of each payment when |
the pre-need contract, insurance policy or annuity
is |
purchased.
|
The licensee shall make reports to the Comptroller annually |
or at such other
time as the Comptroller may require, on forms |
furnished by the Comptroller. The
licensee shall file the |
annual report with the Comptroller within 75 days after
the end |
of the licensee's fiscal year. The Comptroller shall for good |
cause
shown grant an extension for the filing of the annual |
report upon the written
request of the licensee. Such extension |
shall not exceed 60 days. If a
licensee fails to submit an |
annual report to the Comptroller within the time
specified in |
this Section, the Comptroller shall impose upon the licensee a
|
penalty of $5 per day for the first 15 days past due, $10 per |
day for 16 through 30 days past due, $15 per day for 31 through |
45 days past due, and $20 per day for the 46th day and every day |
thereafter for each and every day the licensee remains |
delinquent in
submitting the annual report. The Comptroller may |
abate all or part of the
$5 daily penalty for good cause shown. |
Every application shall be
accompanied by a check
or money |
|
order in the amount of $25 and every report shall be |
accompanied by a
check or money order in the amount of $10 |
payable to: Comptroller, State of
Illinois.
|
The licensee shall make all required books and records |
pertaining to trust
funds, insurance policies, or tax-deferred |
annuities available to the
Comptroller for examination. The |
Comptroller, or a person designated by the
Comptroller who is |
trained to perform such examinations, may at any time
|
investigate the books, records and accounts of the licensee |
with respect to
trust funds, insurance policies, or |
tax-deferred annuities and for that purpose
may require the |
attendance of and examine under oath all persons whose
|
testimony he may require. The licensee shall pay a fee for such |
examination in
accordance with a schedule established by the |
Comptroller. The fee shall not
exceed the cost of such |
examination. For pre-need contracts funded by trust
|
arrangements, the cost of an initial examination shall be borne |
by the
licensee if it
has $10,000 or more in trust funds, |
otherwise, by the Comptroller. The charge
made by the |
Comptroller for an examination shall be based upon the total |
amount
of trust funds held by the licensee at the end of the |
calendar or fiscal year
for which the report is required by |
this Act and shall be in accordance with
the following |
schedule:
|
Less than $10,000.................................no charge;
|
$10,000 or more but less than $50,000...................$10;
|
|
$50,000 or more but less than $100,000..................$40;
|
$100,000 or more but less than $250,000.................$80;
|
$250,000 or more........................................$100.
|
The Comptroller may order additional audits or |
examinations as he or she
may deem necessary or advisable to |
ensure the safety and stability of the trust
funds and to |
ensure compliance with this Act. These additional audits or
|
examinations shall only be made after good cause is established |
by the
Comptroller in the written order. The grounds for |
ordering these additional
audits or examinations may include, |
but shall not be limited to:
|
(1) material and unverified changes or fluctuations in |
trust balances or
insurance or annuity policy amounts;
|
(2) the licensee changing trustees more than twice in |
any 12-month
period;
|
(3) any withdrawals or attempted withdrawals from the |
trusts, insurance
policies, or annuity contracts in |
violation of this Act; or
|
(4) failure to maintain or produce documentation |
required by this Act for
deposits into trust accounts, |
trust investment activities, or life insurance or
annuity |
policies.
|
The
licensee shall bear the full cost of that examination |
or audit, up to a maximum
of $20,000. The
Comptroller may elect |
to pay for the examination or audit and receive
reimbursement |
from the licensee. Payment of the costs of the examination or
|
|
audit by a licensee shall be a condition of receiving, |
maintaining, or renewing
a license
under this Act. All moneys |
received by the Comptroller for examination or
audit fees shall |
be maintained in a separate account to be known as the
|
Comptroller's Administrative
Fund. This
Fund, subject to |
appropriation by the General Assembly, may
be utilized by the |
Comptroller for
enforcing this Act and other purposes that may |
be authorized by law.
|
For pre-need contracts funded by life insurance or a |
tax-deferred annuity,
the cost of an examination shall be borne |
by the licensee. The fee
schedule for such examination shall be |
established in rules promulgated by the
Comptroller. In the |
event such investigation or other information received by
the |
Comptroller discloses a substantial violation of the |
requirements of this
Act, the Comptroller shall revoke the |
license of such person upon a hearing as
provided in this Act. |
Such licensee may terminate all further responsibility
for |
compliance with the requirements of this Act by voluntarily |
surrendering
the license to the Comptroller, or in the event of |
its loss, furnishing the
Comptroller with a sworn statement to |
that effect, which states the licensee's
intention to |
discontinue acceptance of funds received under pre-need |
contracts.
Such license or statement must be accompanied by an |
affidavit that said
licensee has lawfully expended or refunded |
all funds received under pre-need
contracts, and that the |
licensee will accept no additional sales proceeds. The
|
|
Comptroller shall immediately cancel or revoke said license.
|
(Source: P.A. 96-879, eff. 2-2-10.)
|
(225 ILCS 45/3a-5)
|
Sec. 3a-5. License requirements.
|
(a) Every license issued by the Comptroller shall state
the |
number of the license, the business name and address of
the |
licensee's principal place of business, each branch
location |
also operating under the license, and the
licensee's parent |
company, if any. The license shall be
conspicuously posted in |
each place of business operating
under the license. The |
Comptroller may issue such
additional licenses as may be |
necessary for licensee branch
locations upon compliance with |
the provisions of this Act
governing an original issuance of a |
license for each new
license.
|
(b) Individual salespersons representing a licensee
shall |
not be required to obtain licenses in their
individual |
capacities, but must acknowledge, by affidavit,
that they have |
been provided with a copy of and have read
this Act. The |
licensee shall retain copies of the affidavits
of its sellers |
for its records and shall make the affidavits
available to the |
Comptroller for examination upon request.
|
(c) The licensee shall be responsible for the activities
of |
any person representing the licensee in selling or
offering a |
pre-need contract for sale.
|
(d) Any person not selling on behalf of a licensee shall
|
|
obtain its own license.
|
(e) No license shall be transferable or assignable
without |
the express written consent of the Comptroller. A
transfer of |
more than 50% of the ownership of any business
licensed |
hereunder shall be deemed to be an attempted
assignment of the |
license originally issued to the licensee
for which consent of |
the Comptroller shall be required.
|
(f) Every license issued hereunder shall be renewed every 5 |
years for a renewal fee of $100. The renewal fee shall be |
deposited into the Comptroller's Administrative Fund remain in |
force
until it has been suspended, surrendered, or revoked in
|
accordance with this Act. The Comptroller, upon the request
of |
an interested person or on his own motion, may issue new
|
licenses to a licensee whose license or licenses have been
|
revoked, if no factor or condition then exists which would
have |
warranted the Comptroller to originally refuse the
issuance of |
such license.
|
(Source: P.A. 92-419, eff. 1-1-02.)
|
Section 10. The Cemetery Oversight Act is amended by |
changing Sections 15-15, 15-40, and 75-55 as follows:
|
(225 ILCS 411/15-15) |
(Section scheduled to be repealed on January 1, 2021)
|
Sec. 15-15. Care funds; deposits; investments. |
(a) Whenever a cemetery authority accepts care funds, |
|
either in connection with the sale or giving away at an imputed |
value of an interment right, entombment right, or inurnment |
right, or in pursuance of a contract, or whenever, as a |
condition precedent to the purchase or acceptance of an |
interment right, entombment right, or inurnment right, such |
cemetery authority shall establish a care fund or deposit the |
funds in an already existing care fund. |
(b) The cemetery authority shall execute and deliver to the |
person from whom it received the care funds an instrument in |
writing that shall specifically state: (i) the nature and |
extent of the care to be furnished and (ii) that such care |
shall be furnished only in so far as net income derived from |
the amount deposited in trust will permit (the income from the |
amount so deposited, less necessary expenditures of |
administering the trust, shall be deemed the net income). |
(c) The setting-aside and deposit of care funds shall be |
made by such cemetery authority no later than 30 days after the |
close of the month in which the cemetery authority gave away |
for an imputed value or received the final payment on the |
purchase price of interment rights, entombment rights, or |
inurnment rights, or received the final payment for the general |
or special care of a lot, grave, crypt, or niche or of a family |
mausoleum, memorial, marker, or monument, and such amounts |
shall be held by the trustee of the care funds of such cemetery |
authority in trust and in perpetuity for the specific purposes |
stated in the written instrument described in subsection (b). |
|
For all care funds received by a cemetery authority, except for |
care funds received by a cemetery authority pursuant to a |
specific gift, grant, contribution, payment, legacy, or |
contract that are subject to investment restrictions more |
restrictive than the investment provisions set forth in this |
Act, and except for care funds otherwise subject to a trust |
agreement executed by a person or persons responsible for |
transferring the specific gift, grant, contribution, payment, |
or legacy to the cemetery authority that contains investment |
restrictions more restrictive than the investment provisions |
set forth in this Act, the cemetery authority may, without the |
necessity of having to obtain prior approval from any court in |
this State, designate a new trustee in accordance with this Act |
and invest the care funds in accordance with this Section, |
notwithstanding any contrary limitation contained in the trust |
agreement. |
(d) Any cemetery authority engaged in selling or giving |
away at an imputed value interment rights, entombment rights, |
or inurnment rights, in conjunction with the selling or giving |
away at an imputed value any other merchandise or services not |
covered by this Act, shall be prohibited from increasing the |
sales price or imputed value of those items not requiring a |
care fund deposit under this Act with the purpose of allocating |
a lesser sales price or imputed value to items that require a |
care fund deposit. |
(e) If any sale that requires a deposit to a cemetery |
|
authority's care fund is made by a cemetery authority on an |
installment basis, and the installment contract is factored, |
discounted, or sold to a third party, then the cemetery |
authority shall deposit the amount due to the care fund within |
30 days after the close of the month in which the installment |
contract was factored, discounted, or sold. If, subsequent to |
such deposit, the purchaser defaults on the contract such that |
no care fund deposit on that contract would have been required, |
then the cemetery authority may apply the amount deposited as a |
credit against future required deposits. |
(f) The trust authorized by this Section shall be a single |
purpose trust fund. In the event of the cemetery authority's |
bankruptcy, insolvency, or assignment for the benefit of |
creditors, or an adverse judgment, the trust funds shall not be |
available to any creditor as assets of the cemetery authority |
or to pay any expenses of any bankruptcy or similar proceeding, |
but shall be retained intact to provide for the future |
maintenance of the cemetery. Except in an action by the |
Department to revoke a license issued pursuant to this Act and |
for creation of a receivership as provided in this Act, the |
trust shall not be subject to judgment, execution, garnishment, |
attachment, or other seizure by process in bankruptcy or |
otherwise, nor to sale, pledge, mortgage, or other alienation, |
and shall not be assignable except as approved by the |
Comptroller Department.
|
(Source: P.A. 96-863, eff. 3-1-10.)
|
|
(225 ILCS 411/15-40) |
(Section scheduled to be repealed on January 1, 2021)
|
Sec. 15-40. Trust examinations and audits. |
(a) The Comptroller Department shall examine at least |
annually every licensee who holds $250,000 or more in its care |
funds. For that purpose, the Comptroller Department shall have |
free access to the office and places of business and to such |
records of all licensees and of all trustees of the care funds |
of all licensees as shall relate to the acceptance, use, and |
investment of care funds. The Comptroller Department may |
require the attendance of and examine under oath all persons |
whose testimony may be required relative to such business. In |
such cases the Comptroller Department, or any qualified |
representative of the Comptroller Department whom the |
Comptroller Department may designate, may administer oaths to |
all such persons called as witnesses, and the Comptroller |
Department, or any such qualified representative of the |
Comptroller Department, may conduct such examinations. The |
cost of an initial examination shall be determined by rule. |
(b) The Comptroller Department may order additional audits |
or examinations as it may deem necessary or advisable to ensure |
the safety and stability of the trust funds and to ensure |
compliance with this Act. These additional audits or |
examinations shall only be made after good cause is established |
by the Comptroller Department in the written order. The grounds |
|
for ordering these additional audits or examinations may |
include, but shall not be limited to:
|
(1) material and unverified changes or fluctuations in |
trust balances; |
(2) the licensee changing trustees more than twice in |
any 12-month period; |
(3) any withdrawals or attempted withdrawals from the |
trusts in violation of this Act; or |
(4) failure to maintain or produce documentation |
required by this Act.
|
(Source: P.A. 96-863, eff. 3-1-10.)
|
(225 ILCS 411/75-55) |
(Section scheduled to be repealed on January 1, 2021)
|
Sec. 75-55. Transition.
|
(a) Within 60 days after the effective date of this Act, |
the Comptroller shall provide the Department copies of records |
in the Comptroller's possession pertaining to the Cemetery Care |
Act and the Crematory Regulation Act that are necessary for the |
Department's immediate responsibilities under this Act. All |
other records pertaining to the Cemetery Care Act with the |
exception of records pertaining to care funds and the Crematory |
Regulation Act shall be transferred to the Department by March |
1, 2012. In the case of records that pertain both to the |
administration of the Cemetery Care Act or the Crematory |
Regulation Act and to a function retained by the Comptroller, |
|
the Comptroller, in consultation with the Department, shall |
determine, within 60 days after the repeal of the Cemetery Care |
Act, whether the records shall be transferred, copied, or left |
with the Comptroller; until this determination has been made |
the transfer shall not occur. |
(b) (Blank). A person licensed under one of the Acts listed |
in subsection (a) of this Section or regulated under the |
Cemetery Association Act shall continue to comply with the |
provisions of those Acts until such time as the person is |
licensed under this Act or those Acts are repealed or the |
amendatory changes made by this amendatory Act of the 96th |
General Assembly take effect, as the case may be, whichever is |
earlier. |
(c) To support the costs that may be associated with |
implementing and maintaining a licensure and regulatory |
process for the licensure and regulation of cemetery |
authorities, cemetery managers, customer service employees, |
and cemetery workers, all cemetery authorities not maintaining |
a full exemption or partial exemption shall pay a one-time fee |
of $20 to the Department plus an additional charge of $1 per |
burial unit per year within the cemetery. The Department may |
establish forms for the collection of the fee established under |
this subsection and shall deposit such fee into the Cemetery |
Oversight Licensing and Disciplinary Fund. The Department may |
begin to collect the aforementioned fee after the effective |
date of this Act. In addition, the Department may establish |
|
rules for the collection process, which may include, but shall |
not be limited to, dates, forms, enforcement, or other |
procedures necessary for the effective collection, deposit, |
and
overall process regarding this Section. |
(d) Any cemetery authority that fails to pay to the |
Department the required fee or submits the incorrect amount |
shall be subject to the penalties provided for in Section |
25-110 of this Act. |
(e) Except as otherwise specifically provided, all fees, |
fines, penalties, or other moneys received or collected |
pursuant to this Act shall be deposited in the Cemetery |
Oversight Licensing and Disciplinary Fund. |
(f) (Blank). All proportionate funds held in the |
Comptroller's Administrative Fund related to unexpended moneys |
collected under the Cemetery Care Act and the Crematory |
Regulation Act shall be transferred to the Cemetery Oversight |
Licensing and Disciplinary Fund within 60 days after the |
effective date of the repeal of the Cemetery Care Act. |
(g) (Blank). Personnel employed by the Comptroller on |
February 29, 2012, to perform the duties pertaining to the |
administration of the Cemetery Care Act and the Crematory |
Regulation Act, are transferred to the Department on March 1, |
2012. |
The rights of State employees, the State, and its agencies |
under the Comptroller Merit Employment Code and applicable |
collective bargaining agreements and retirement plans are not |
|
affected under this Act, except that all positions transferred |
to the Department shall be subject to the Personnel Code |
effective March 1, 2012. |
All transferred employees who are members of collective |
bargaining units shall retain their seniority, continuous |
service, salary, and accrued benefits. During the pendency of |
the existing collective bargaining agreement, the rights |
provided for under that agreement shall not be abridged. |
The Department shall continue to honor during their |
pendency all bargaining agreements in effect at the time of the |
transfer and to recognize all collective bargaining |
representatives for the employees who perform or will perform |
functions transferred by this Act. For all purposes with |
respect to the management of the existing agreement and the |
negotiation and management of any successor agreements, the |
Department shall be deemed the employer of employees who |
perform or will perform functions transferred to the Department |
by this Act.
|
(Source: P.A. 96-863, eff. 3-1-10.)
|
Section 15. The Illinois Pre-Need Cemetery Sales Act is |
amended by changing Sections 6, 8, 15, and 20 as follows:
|
(815 ILCS 390/6) (from Ch. 21, par. 206)
|
Sec. 6. License application.
|
(a) An application for a license shall be made in writing |
|
to
the Comptroller on forms prescribed by him or her, signed by |
the applicant
under oath verified by a notary public,
and |
accompanied
by a non-returnable $125 $25 application fee, $100 |
of which shall be deposited into the Comptroller's |
Administrative Fund. The Comptroller may prescribe
abbreviated |
application forms for persons holding a license under the |
Cemetery
Care Act. Applications (except abbreviated |
applications) must include at least
the following information:
|
(1) The full name and address, both residence and |
business, of the
applicant if the applicant is an |
individual; of every member if applicant is
a partnership; |
of every member of the Board of Directors if applicant is |
an
association; and of every officer, director and |
shareholder
holding more
than 10% of the corporate stock if |
applicant is a corporation;
|
(2) A detailed statement of applicant's assets and |
liabilities;
|
(2.1) The name and address of the applicant's
principal |
place of business at which the books,
accounts, and records |
are available for examination
by the Comptroller as |
required by this Act;
|
(2.2) The name and address of the applicant's branch
|
locations at which pre-need sales will be conducted and
|
which will operate under the same license number as the
|
applicant's principal place of business;
|
(3) For each individual listed under (1) above, a |
|
detailed statement of
the individual's business experience |
for the 10 years immediately preceding
the application; any |
present or prior connection between the individual and
any |
other person engaged in pre-need sales; any felony or |
misdemeanor
convictions for which fraud was an essential |
element; any charges or
complaints lodged against the |
individual for which fraud was an essential
element and |
which resulted in civil or criminal litigation; any failure |
of
the individual to satisfy an enforceable judgment |
entered against him or
her based
upon fraud;
and any other |
information requested by the Comptroller relating
to the |
past business practices of the individual. Since the |
information
required by this paragraph may be confidential |
or contain proprietary
information, this information shall |
not be available to other licensees or
the general public |
and shall be used only for the lawful purposes of the
|
Comptroller in enforcing this Act;
|
(4) The name of the trustee and, if applicable, the |
names of the
advisors to the trustee, including a copy of |
the proposed trust agreement
under which the trust funds |
are to be held as required by this Act;
|
(5) Where applicable, the name of the corporate surety |
company
providing the performance bond for the |
construction of undeveloped spaces
and a copy of the bond; |
and
|
(6) Such other information as the Comptroller may |
|
reasonably require in
order to determine the qualification |
of the applicant to be licensed under this
Act.
|
(b) Applications for license shall be accompanied by a |
fidelity bond
executed by the applicant and a security company |
authorized to do business
in this State in such amount, not |
exceeding $10,000, as the Comptroller may
require. The |
Comptroller may require additional bond from time to time in
|
amounts equal to one-tenth of such trust funds but not to |
exceed $100,000,
which bond shall run to the Comptroller for |
the use and benefit of the
beneficiaries of such trust funds. |
Such licensee may by written permit of
the Comptroller be |
authorized to operate without additional bond, except
such |
fidelity bond as may be required by the Comptroller for the |
protection
of the licensee against loss by default by any of |
its employees engaged in
the handling of trust funds.
|
(c) Any application not acted upon within 90 days may be |
deemed denied.
|
(Source: P.A. 92-419, eff. 1-1-02.)
|
(815 ILCS 390/8) (from Ch. 21, par. 208)
|
Sec. 8.
(a) Every license issued by the Comptroller shall |
state the
number of the license, the business name and address |
of the licensee's
principal place of business, each branch |
location also operating under the
license, and the licensee's |
parent company, if any. The license shall be
conspicuously |
posted in
each place of business operating under the license. |
|
The Comptroller may issue
additional licenses as may be |
necessary for license branch locations upon compliance with the |
provisions of this Act
governing an original issuance of a |
license for each new license.
|
(b) Individual salespersons representing a licensee
shall |
not be required
to obtain licenses in their individual |
capacities
but must acknowledge, by affidavit, that they have
|
been provided a copy of and have read this Act. The licensee |
must
retain copies of the affidavits of its salespersons for |
its
records and must make the affidavits available to the
|
Comptroller for examination upon request.
|
(c) The licensee shall be responsible for the activities of |
any person
representing the licensee in selling or offering a |
pre-need contract for sale.
|
(d) Any person not selling on behalf of a
licensee
shall be |
required to obtain his or her own license.
|
(e) Any person engaged in pre-need sales, as defined |
herein, prior to
the effective date of this Act may continue |
operations until the application
for license under this Act is |
denied; provided that such person shall make
application for a |
license within 60 days of the date that application forms
are |
made available by the Comptroller.
|
(f) No license shall be transferable or assignable without |
the express
written consent of the Comptroller. A transfer of |
more than 50% of the
ownership of any business licensed |
hereunder shall be deemed to be an attempted
assignment of the |
|
license originally issued to the licensee for which consent
of |
the Comptroller shall be required.
|
(g) Every license issued hereunder shall be renewed every 5 |
years for a fee of $100. The renewal fee shall be deposited |
into the Comptroller's Administrative Fund. The remain in force |
until the same
has been suspended, surrendered or revoked in |
accordance with this Act,
but the Comptroller, upon the request |
of an interested person or on his
own motion, may issue new |
licenses to a licensee whose license or licenses
have been |
revoked, if no factor or condition then exists which would have
|
warranted the Comptroller in refusing originally the issuance |
of such license.
|
(Source: P.A. 92-419, eff. 1-1-02.)
|
(815 ILCS 390/15) (from Ch. 21, par. 215)
|
Sec. 15.
(a) Whenever a seller receives anything of value |
under a
pre-need sales contract, the person receiving such |
value shall deposit 50%
of all proceeds received into one or |
more trust funds maintained pursuant
to this Section, except |
that, in the case of proceeds received for the
purchase of |
outer burial containers, 85% of the proceeds shall be deposited
|
into one or more trust funds. Such deposits shall be made until |
the amount
deposited in
trust equals 50% of the sales price of |
the cemetery merchandise, cemetery
services and undeveloped |
spaces included in such contract, except that, in
the case of |
deposits for outer burial containers, deposits shall be made |
|
until
the amount deposited in trust equals 85% of the sales |
price. In the event
an
installment contract is factored, |
discounted or sold to a third party, the
seller shall deposit |
an amount equal to 50% of the sales price of the
installment |
contract, except that, for the portion of the contract
|
attributable to the sale of outer burial containers, the seller |
shall deposit
an amount equal to 85% of the sales price. |
Proceeds required to be deposited
in trust which
are
|
attributable to cemetery merchandise and cemetery services |
shall be held
in a "Cemetery Merchandise Trust Fund". Proceeds |
required to be deposited
in trust which are attributable to the |
sale of undeveloped interment,
entombment or inurnment spaces |
shall be held in a "Pre-construction Trust
Fund". If |
merchandise is delivered for storage in a bonded warehouse, as
|
authorized herein, and payment of transportation or other |
charges totaling
more than $20 will be required in order to |
secure delivery to the site of
ultimate use, upon such delivery |
to the warehouse the seller shall deposit
to the trust fund the |
full amount of the actual or estimated transportation
charge. |
Transportation charges which have been prepaid by the seller
|
shall not be deposited to trust funds maintained pursuant to |
this Section.
As used in this Section, "all proceeds" means the |
entire amount paid by a
purchaser in connection with a pre-need |
sales contract, including finance
charges and Cemetery Care Act |
contributions, but excluding sales taxes
and credit life |
insurance premiums.
|
|
(b) The seller shall act as trustee of all amounts received |
for cemetery merchandise, services, or undeveloped spaces |
until those amounts have been deposited into the trust fund. |
All trust deposits required by this Act shall be made within 30 |
days
following the end of the month of receipt. The seller must |
retain a corporate fiduciary as an independent trustee for any |
amount of trust funds. Upon 30 days' prior written notice from |
the seller to the Comptroller, the seller may change the |
trustee of the trust fund. Failure to provide the Comptroller |
with timely prior notice is an intentional violation of this |
Act.
|
(c) A trust established under this Act must be maintained |
with a corporate fiduciary as defined in Section 1-5.05 of the |
Corporate Fiduciary Act or with a foreign corporate fiduciary |
recognized by Article IV of the Corporate Fiduciary Act.
|
(d) Funds deposited in the trust account shall be |
identified in the records
of the seller by the name of the |
purchaser. Nothing shall prevent the trustee
from commingling |
the deposits in any such trust fund for purposes of the
|
management thereof and the investment of funds therein as |
provided in the
"Common Trust Fund Act", approved June 24, |
1949, as amended. In addition,
multiple trust funds maintained |
pursuant to this Act may be commingled or
commingled with other |
funeral or burial related trust funds, provided that
all record |
keeping requirements imposed by or pursuant to law are met.
|
(e) In lieu of a pre-construction trust fund, a seller of |
|
undeveloped
interment, entombment or inurnment spaces may |
obtain and file with the
Comptroller a performance bond in an |
amount at least equal to 50% of the
sales price of the |
undeveloped spaces or the estimated cost of completing
|
construction, whichever is greater. The bond shall be |
conditioned on the
satisfactory construction and completion of |
the undeveloped spaces as
required in Section 19 of this Act.
|
Each bond obtained under this Section shall have as surety |
thereon a
corporate surety company incorporated under the laws |
of the United States,
or a State, the District of Columbia or a |
territory or possession of the
United States. Each such |
corporate surety company must be authorized to
provide |
performance bonds as required by this Section, have paid-up
|
capital of at least $250,000 in cash or its equivalent and be |
able to carry
out its contracts. Each pre-need seller must |
provide to the Comptroller,
for each corporate surety company |
such
seller utilizes, a statement of assets and liabilities of |
the corporate
surety company sworn to by the president and |
secretary
of the corporation by January 1 of each year.
|
The Comptroller shall prohibit pre-need sellers from doing |
new business
with a corporate surety company if the company is |
insolvent or is in
violation of this Section. In addition the |
Comptroller may direct a
pre-need seller to reinstate a |
pre-construction trust fund upon the
Comptroller's |
determination that the corporate surety company no longer is
|
sufficient security.
|
|
All performance bonds issued pursuant to this Section must |
be irrevocable
during the statutory term for completing |
construction specified in Section
19 of this Act, unless |
terminated sooner by the completion of construction.
|
(f) Whenever any pre-need contract shall be entered into |
and include 1)
items of cemetery merchandise and cemetery |
services, and 2) rights to
interment, inurnment or entombment |
in completed spaces without allocation
of the gross sale price |
among the items sold, the application of payments
received |
under the contract shall be allocated, first to the right to
|
interment, inurnment or entombment, second to items of cemetery |
merchandise
and cemetery services, unless some other |
allocation is clearly provided
in the contract.
|
(g) Any person engaging in pre-need sales who enters into a |
combination
sale which involves the sale of items covered by a |
trust or performance
bond requirement and any item not covered |
by any entrustment or bond
requirement, shall be prohibited |
from increasing the gross sales price of
those items not |
requiring entrustment with the purpose of allocating a
lesser |
gross sales price to items which require a trust deposit or a
|
performance bond.
|
(Source: P.A. 96-879, eff. 2-2-10.)
|
(815 ILCS 390/20) (from Ch. 21, par. 220)
|
Sec. 20. Records.
|
(a) Each licensee must keep accurate accounts, books and
|
|
records in this State
at the principal place of business |
identified in the
licensee's license application or as |
otherwise approved by
the Comptroller in writing
of all |
transactions, copies of agreements, dates and
amounts of |
payments made or received, the names and addresses of the
|
contracting parties, the names and addresses of persons for |
whose benefit
funds are received, if known, and the names of |
the trust depositories.
Additionally, for a period not to |
exceed 6 months after
the performance of all terms in a |
pre-need sales contract,
the licensee shall maintain copies of |
each pre-need
contract at the licensee branch location where |
the contract
was entered or at some other location agreed to by |
the Comptroller in
writing.
|
(b) Each licensee must maintain such records for a period |
of 3
years
after the licensee shall have fulfilled his or her |
obligation
under the pre-need
contract or 3 years after any |
stored merchandise shall have been provided
to the purchaser or |
beneficiary, whichever is later.
|
(c) Each licensee shall submit reports to the Comptroller
|
annually,
under oath, on forms furnished by the Comptroller. |
The annual report
shall
contain, but shall not be limited to, |
the following:
|
(1) An accounting of the principal deposit and |
additions of principal
during the fiscal year.
|
(2) An accounting of any withdrawal of principal or |
earnings.
|
|
(3) An accounting at the end of each fiscal year, of |
the total amount of
principal and earnings held.
|
(d) The annual report shall be filed by the licensee with |
the
Comptroller within 75 days after the end of the licensee's |
fiscal year. An
extension of up to 60 days may be granted by |
the Comptroller, upon a
showing of need by the licensee. Any |
other reports shall be in
the form
furnished or specified by |
the Comptroller. If a licensee fails to submit an
annual report |
to the Comptroller within the time specified in this Section, |
the
Comptroller shall impose upon the licensee a penalty of $5 |
per day for the first 15 days past due, $10 per day for 16 |
through 30 days past due, $15 per day for 31 through 45 days |
past due, and $20 per day for the 46th day and every day |
thereafter for
each and every
day the licensee remains |
delinquent in submitting the annual report. The
Comptroller may |
abate all or part of the $5 daily penalty for good cause
shown. |
Each
report shall be accompanied by a check or money order in |
the
amount of $10
payable to: Comptroller, State of Illinois.
|
(e) On and after the effective date of this amendatory Act |
of the 91st
General Assembly, a licensee may
report all |
required information concerning the sale of outer burial |
containers
on the licensee's annual report required to be filed |
under this Act and
shall
not be required to report that |
information under the Illinois Funeral or
Burial
Funds Act, as |
long as the information is reported under this Act.
|
(Source: P.A. 91-7, eff. 1-1-00; 92-419, eff. 1-1-02.)
|
