Irrevocable Trust Fund

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  2. Georgia Code
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  4. Cemetery and Funeral Services
  5. Irrevocable Trust Fund

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  1. As used in this Code section, the term "income" means:
    1. The net income, including the collected dividends, interest, net realized gains, and other income of the trust reduced by any expenses, including, but not limited to, taxes on income, fees, commissions, and costs; or
    2. Four percent of the net fair market value of the trust assets, averaged over the lesser of the three preceding years or the period during which the trust has been in existence.
    1. Each cemetery or cemetery company required to be registered by this chapter shall establish and maintain an irrevocable trust fund for each cemetery owned.
    2. For trust funds established on or after July 1, 2000, the initial deposit to said irrevocable trust fund shall be the sum of $10,000.00 and the deposit of said sum shall be made before selling or contracting to sell any burial right. No such initial deposit shall be required with respect to any cemetery for which there is an existing perpetual care account on July 1, 2000. The trust fund shall apply to sales or contracts for sale of lots, grave spaces, niches, mausoleums, columbaria, urns, or crypts in which perpetual care has been promised or guaranteed.
    3. The initial corpus of the trust fund and all subsequent required deposits shall be deposited in a state bank, state savings and loan institution, savings bank, national bank, or federal savings and loan institution, whose deposits are insured by the Federal Deposit Insurance Corporation or other governmental agency, or a state or federally chartered credit union insured under 12 U.S.C. Section 1781 of the Federal Credit Union Act, or other depository or trustee which is approved by the Secretary of State or which meets the standards contained in the rules and regulations promulgated by the Secretary of State.
    4. Each perpetual care trust fund established on or after July 1, 2000, shall be named "The _____________ Cemetery _____________ Perpetual Care Trust Fund" with the first blank being filled by the name of the cemetery and the second blank being filled by the month and year of the establishment of such trust fund. If a cemetery has a perpetual care trust fund existing on July 1, 2000, and the perpetual care trust fund agreement permits, the cemetery may make additional deposits to such a trust fund on the condition that the entire corpus of the trust fund, any income earned by the trust fund, and any subsequent deposits to the trust fund are thereafter governed by the provisions of this chapter, the "Georgia Cemetery and Funeral Services Act of 2000," as it existed on July 1, 2000, except for the amount of the initial deposit to the trust fund. If a cemetery owner or company elects to establish a new perpetual care trust fund subject to the provisions of this chapter, the "Georgia Cemetery and Funeral Services Act of 2000," as it existed on July 1, 2000, any perpetual care trust fund which existed on July 1, 2000, is subject to the provisions of law in effect on the date of its establishment, and deposits for sales transacted on or after July 1, 2000, shall be deposited in the trust fund established on or after July 1, 2000. If a cemetery existing on July 1, 2000, has an existing perpetual care trust fund which complies with provisions of law in effect on the date of its establishment, a new trust fund created in compliance with this chapter shall not require an initial deposit.
  3. Whenever any burial right, cemetery lot, grave space, niche, mausoleum, columbarium, urn, or crypt wherein perpetual care or endowment care is promised or contracted for or guaranteed is sold by any cemetery, the cemetery shall make deposits to the trust fund that equal 15 percent of the sales price of the burial right or 7.5 percent of the total sales price of any mausoleums, niches, columbaria, urns, or crypts, provided that the minimum deposit for each burial right shall be $50.00; provided, further, that on July 1, 2003, and every three years thereafter, the amount of said minimum deposit shall be adjusted by the rate of change in the Consumer Price Index as reported by the Bureau of Labor Statistics of the United States Department of Labor. The Secretary of State shall adopt such adjustment to the amount of said minimum deposit by rule. Deposits to the trust fund shall be made not later than 30 days following the last day of the month in which payment therefor is made, or, in the case of a free space, the month in which the space is given. In the event any sale is made on an installment basis, not less than a pro rata share of the principal portion of each payment made and allocated to the lot, grave, space, niche, mausoleum, columbarium, urn, or crypt shall be allocated to the required trust fund deposit, provided that all deposits to the trust fund shall be completed within six years from the date of the signing of the perpetual care contract. The manner of any such allocation shall be clearly reflected on the books of the registrant.
  4. The initial $10,000.00 corpus of the perpetual care trust fund shall not be counted as part of the required periodic deposits and shall be considered to be corpus or principal.
    1. The income earned by the trust fund shall be retained by the trust fund. At such time as either:
      1. The cemetery owner is not licensed and has not been licensed for 90 or more consecutive days to sell burial rights;
      2. The cemetery is under the management of a receiver; or
      3. Less than 50 percent of available lots are unsold,

        95 percent of the income from the trust fund shall be paid to the owner or receiver exclusively for covering the costs of care and maintenance of the cemetery, including reasonable administrative expenses incurred in connection therewith. The income of the trust fund shall be paid to the owner or receiver at intervals agreed upon by the recipient and the trustee, but in no case shall the income be paid more often than monthly.

    2. Subject to the limitations set forth in paragraph (1) of this subsection, a cemetery owner or receiver may request a trustee to distribute income following the unitrust distribution method provisions outlined in Code Section 53-12-362. The cemetery owner or receiver may select the unitrust distribution method by delivering written instructions to the trustee no later than 60 days prior to when the conversion shall take place. Such notification shall also be provided to the Secretary of State. The unitrust distribution method and the distribution rate selected shall remain in effect unless the cemetery or cemetery company notifies the trustee and the Secretary of State of its desire to effect a change.
    3. Disbursements from the trust in accordance with this subsection shall be made on a monthly, quarterly, semiannual, or annual basis, as agreed upon by the cemetery or cemetery company and the trustee.
    4. The Secretary of State may limit or prohibit any distribution based on the unitrust distribution method provisions in situations where investment returns and distribution practices have not resulted in sufficient protection of the perpetual care trust fund's trust principal based upon a three to five-year analysis.
  6. There shall be no withdrawals from the trust fund except pursuant to the provisions of this chapter or by court order.
    1. The assets of a trust fund shall be invested and reinvested subject to all the terms, conditions, limitations, and restrictions imposed by the laws of the State of Georgia upon executors and trustees regarding the making and depositing of investments with trust moneys pursuant to former Code Sections 53-8-1 through 53-8-4 as such existed on December 31, 1997, if applicable; Code Section 53-8-1; or Code Section 53-12-340. Subject to said terms, conditions, limitations, and restrictions, the trustee of the perpetual care trust fund shall have full power to hold, purchase, sell, assign, transfer, reinvest, and dispose of any of the securities and investments in which any of the assets of said fund are invested, including proceeds of investments.
    2. Any state bank, national bank, or other financial institution authorized to act in a fiduciary capacity in this state, which presently or in the future serves as a fiduciary or cofiduciary of the trust fund of a perpetual care cemetery, may invest part or all of such trust fund held by it for investment in interests or participation in one or more common trust funds established by that state bank, national bank, or other financial institution for collective investment, if such investment is not expressly prohibited by the instrument, judgment, decree, or order creating the fiduciary relationship and if, in the case of cofiduciaries the trust institution procures the consent of its cofiduciary or cofiduciaries to such investment, and notwithstanding the fact that such common trust funds are not invested and reinvested subject to all the terms, conditions, limitations, and restrictions imposed by the laws of the State of Georgia upon executors and trustees in the making and disposing of their investments.
    3. Notwithstanding any other provision of this subsection, the Secretary of State shall establish rules and regulations for investments of a trust fund established on or after July 1, 2000, or otherwise governed by this chapter, the "Georgia Cemetery and Funeral Services Act of 2000," as it existed on July 1, 2000, as necessary to preserve the corpus and income of such a fund and for determining what restrictions are necessary for such purpose.
    4. At any time, in the event that the perpetual care trust fund contains an amount less than the amount required by this Code section, the cemetery owner shall, within 15 days after the earlier of becoming aware of such fact or having been so notified by the Secretary of State, deposit into the perpetual care trust fund an amount equal to such shortfall. In the event that the Secretary of State and the cemetery owner disagree regarding the amount of such shortfall, no penalty shall be imposed upon the cemetery owner for any failure to comply with this paragraph unless such failure occurs after notice and opportunity for a hearing as provided in Code Section 10-14-23.
  8. Moneys of the perpetual care trust fund shall not be invested in or loaned to any business venture controlled by the cemetery owner, a person who owns a controlling interest of a cemetery owner that is not a natural person, or an affiliate of any of these persons or entities.
  9. The trustee shall furnish yearly to the Secretary of State a financial report in a form designated by the Secretary of State with respect to the perpetual care trust fund.
  10. Upon a finding by a court of competent jurisdiction of failure to deposit or maintain funds in the trust account as required by this chapter or of fraud, theft, or misconduct by the owners of the cemetery or the officers or directors of a cemetery company which has wasted or depleted such funds, the cemetery owners or the officers or directors of a cemetery company may be held jointly and severally liable for any deficiencies in the trust account as required in this chapter.

(Code 1981, §44-3-134, enacted by Ga. L. 1983, p. 1508, § 1; Ga. L. 1984, p. 22, § 44; Ga. L. 1986, p. 10, § 44; Ga. L. 1986, p. 1468, §§ 4-6; Ga. L. 1994, p. 329, § 1; Ga. L. 1998, p. 128, § 44; Code 1981, §10-14-6, as redesignated by Ga. L. 2000, p. 882, § 1; Ga. L. 2010, p. 579, § 4/SB 131; Ga. L. 2011, p. 752, § 10/HB 142; Ga. L. 2017, p. 543, § 1/SB 147.)

The 2017 amendment, effective July 1, 2017, added subsection (a); redesignated former subsections (a) through (c) as present subsections (b) through (d), respectively; designated the existing provisions of former subsection (d) as present paragraph (e)(1) and redesignated former paragraphs (d)(1) through (d)(3) as present subparagraphs (e)(1)(A) through (e)(1)(C); added paragraphs (e)(2) through (e)(4); and redesignated former subsections (e) through (i) as present subsections (f) through (j), respectively.

Cross references.

- Abandonment and forfeiture of cemetery lots, § 44-5-211.

OPINIONS OF THE ATTORNEY GENERAL

Insurance Code restrictions apply.

- Restrictions imposed by former Code 1933, § 56-1005 upon domestic insurers in making investments apply to the investment of the assets of perpetual care trust funds. 1974 Op. Att'y Gen. No. 74-51.

Initial deposit is capital.

- For the purpose of determining what investments are permissible, the initial trust deposit required of a cemetery offering perpetual care should be considered minimum capital, and the balance of the corpus of the trust fund should be considered a reserve. 1974 Op. Att'y Gen. No. 74-51.

Corpus of a perpetual care trust fund is generally a reserve to provide for the payment of future liabilities. 1974 Op. Att'y Gen. No. 74-51.

Family burial plot.

- Absent some local regulation to the contrary a citizen could start a family burial plot on the citizen's own property; in the event of any death, however, all public health formalities would have to be complied with. 1975 Op. Att'y Gen. No. U75-9.

Construction of subsection (c).

- The plain language of O.C.G.A. § 10 14 6(c) requires a cemetery to "make deposits to the trust that equal" a specified percentage of the "sales price" of the item or items sold, but the statute does not directly address whether a cemetery can then charge a customer an "additional add-on" equal to the amount of the deposit to a perpetual care trust fund. Nevertheless, § 10 14 6(c) does not stand alone, as it is a part of the Act "whose key components were enacted contemporaneously." Construed together with other provisions of the Act, it does not appear that the legislature intended for customers to be charged an "additional add-on" equal to the amount of the deposit to a perpetual care trust fund, and a cemetery is, therefore, prohibited from doing so. 2017 Op. Att'y Gen. No. U2017-4.

RESEARCH REFERENCES

Am. Jur. 2d.

- 14 Am. Jur. 2d, Cemeteries, §§ 8, 9, 22.

C.J.S.

- 14 C.J.S., Cemeteries, §§ 1, 11, 29.

ALR.

- Failure to procure occupational or business license or permit as affecting validity or enforceability of contract, 30 A.L.R. 834; 42 A.L.R. 1226; 118 A.L.R. 646.

Validity and reasonableness of rules and regulations of cemetery company or association as to improvement or care of lot, 32 A.L.R. 1406; 47 A.L.R. 70.

Duty as regards use of proceeds of sales of cemetery lots, for care, maintenance, or improvement of cemetery, 124 A.L.R. 279.

Single or isolated transactions as falling within provisions of commercial or occupational licensing requirements, 93 A.L.R.2d 90.

Recovery back of money paid to unlicensed person required by law to have occupational or business license or permit to make contract, 74 A.L.R.3d 637.

Construction and application of Federal Credit Union Act of 1934 (FCUA) (12 U.S.C.A. §§ 1751 to 1795k), 89 A.L.R. Fed. 2d 357.


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