(1) A cemetery authority of an endowment care cemetery shall establish an irrevocable endowment care fund for each endowment care cemetery owned, maintained, or operated by it in a state bank or trust company authorized to act as fiduciary and under the supervision of the banking board or in a national banking association authorized to act as fiduciary or in a state or federally chartered savings and loan association authorized to act as a fiduciary. The endowment care fund shall be invested in investments lawful for trustees, which shall not include investments in nor mortgages on property owned or contracted for by the cemetery authority or any owned or affiliated company.
(2) (a) A cemetery authority of an endowment care cemetery shall make deposits in the endowment care fund or, if it operates more than one endowment care fund, in the appropriate endowment care fund, in accordance with one of the following plans:
Plan A:
It shall deposit in the fund not more than thirty days after any sale is completed at least fifteen percent of the sales price of any grave space and at least ten percent of the sales price of any crypt or niche, and in case any sale has not been completed within sixty months after date of first payment, it shall deposit in the fund, not later than one month after the sixtieth month, at least fifteen percent of the sales price of any grave space and at least ten percent of the sales price of any crypt or niche. A sale is completed at the time the final payment is made and no balance remains due to the cemetery authority, whether or not a deed has been issued. If a contract of sale is rewritten, the date of the first payment under the original contract of sale shall be the date of first payment under the rewritten contract of sale.
Plan B:
It shall deposit, not later than thirty days after the end of the fiscal year in which the payments are received, fifteen percent of all payments received on account of the sale of any grave space and at least ten percent of all payments received on account of the sale of a niche or crypt. This deposit requirement applies to all uncompleted sales contracts that carry an endowment care provision.
Plan C: (applicable only to sale of niches or crypts in a mausoleum)
It shall deposit in its endowment care fund for the mausoleum, not later than thirteen months after the end of its fiscal year in which any sale is completed, at least ten percent of the sale price of any niche or crypt, and in case any sale has not been completed within twenty-four months after date of first payment, it shall deposit in the fund, not later than one month after the end of its fiscal year in which the last day of the twenty-four month period occurs, at least ten percent of the sales price of any niche or crypt. A sale is completed at the time the final payment is made and no balance remains due to the cemetery authority, whether or not a deed has been issued. If a contract of sale is rewritten, the date of first payment under the original contract of sale shall be the date of first payment under the rewritten contract of sale.
(b) As to any endowment care cemetery in operation on July 1, 1965, this subsection (2) shall only apply to all sales contracts entered into on or after the date.
(3) (a) The cemetery authority of an endowment care cemetery, before commencing operation, on or after July 1, 1965, shall have on deposit in the endowment care fund a sum in accordance with the following scale:
For 10,000 or less population $10,000
For more than 10,000 but less than 20,000 population $15,000
For 20,000 but less than 25,000 population $20,000
For 25,000 or more population $25,000
"Population" means the people residing within a twenty-mile radius of the location ofthe endowment care cemetery, the population figure to be taken from the latest federal decennial census.
The cemetery authority for the endowment care cemetery shall thereafter make deposits in accordance with subsection (2) of this section. When the deposits have reached twice the amount stated in the above table, the cemetery authority may withdraw the sum of the initial deposit in amounts equal to the amounts deposited thereafter until the initial deposit has been withdrawn.
A cemetery authority of a nonendowment care cemetery which converts to operationas an endowment care cemetery on or after July 1, 1965, shall deposit in its endowment care fund the sum of ten thousand dollars before making any further sale of any grave space or niche or crypt. The cemetery authority for the cemetery shall thereafter make deposits in accordance with subsection (2) of this section until total deposits into the endowment care fund have reached twenty thousand dollars. It may thereafter withdraw from the initial ten thousand dollar deposit amounts equal to the amounts of deposits thereafter made until the entire ten thousand dollar initial deposit has been withdrawn and replaced by deposits in accordance with subsection (2) of this section.
The cemetery authority of an endowment care cemetery that constructs foundationsfor the setting of markers or memorials and receives payment for the care of the markers or memorials as part of the cost of foundation construction, setting charges, or itemized endowment requirements shall deposit all of the care payments in their irrevocable endowment care fund not later than one month after the end of its fiscal year in which the payments are received.
The cemetery authority of an endowment care cemetery shall keep in its principaloffice a copy of the report referred to in section 6-24-107, which shall be available to any grave space, niche, or crypt owner or his or her duly authorized representative for inspection and study.
(a) The endowment care fund, for all purposes, shall constitute a nonprofit irrevocable trust fund. The fiduciary shall not distribute principal from an endowment care fund; except that principal may be distributed from the fund to the extent that a unitrust election is in effect under subsection (8)(a)(II) of this section.
(b) Endowment care is a provision for the benefit and protection of the public by preserving and keeping cemeteries from becoming unkempt and places of reproach and desolation in the communities in which they are situated. The income from the fund is for the benefit of the public for the purposes provided for in the trust agreement.
(8) (a) The cemetery authority of an endowment care cemetery may choose the distribution as income of either of the following from the endowment care fund:
All net income, including net realized capital gains; or
An amount set and administered in accordance with section 15-1-404.5 for unitrustelections.
(b) (I) A cemetery authority may request that the fiduciary convert an endowment care fund to a unitrust. To take effect during a specific calendar year, the request must be made by delivering written instructions to the fund's fiduciary by November 2 of the year before the trust is converted. Once the fiduciary and the cemetery authority agree on the terms and conditions of conversion, the distribution method, and the distribution rate, these terms remain in effect until the fiduciary and the cemetery authority agree to a change.
Disbursements from the trust shall be made on a monthly, quarterly, semi-annual, orannual basis, as agreed upon by the cemetery authority and the fiduciary. If the fiduciary and cemetery authority are in agreement, the fiduciary need not obtain any court approval or notify a court to set or change the timing of disbursements.
The fiduciary is subject to section 15-1-404.5 when administering an endowmentcare fund for which the unitrust election has been made; except that, in the event of a conflict between this section and section 15-1-404.5, this section controls.
(c) If the fiduciary does not receive written instructions from the cemetery authority informing the fiduciary of the method of income distribution chosen, then the fiduciary shall calculate and disburse the earned net income under subsection (8)(a)(I) of this section on a monthly basis.
Source: L. 2017: Entire article added with relocations, (HB 17-1244), ch. 239, p. 979, § 1, effective August 9; (7) amended and (8) added, (HB 17-1096), ch. 65, p. 206, § 1, effective August 9.
Editor's note: (1) This section is similar to former § 12-12-109 as it existed prior to 2017.
(2) Subsections (7) and (8) were numbered as § 12-12-109 (7) and (8), respectively, in HB 17-1096 (See L. 2017, p. 206). Those provisions were harmonized with this section as it appears in HB 17-1244.