(765 ILCS 835/0.001) (from Ch. 21, par. 14.001)
Sec. 0.001. Short title. This Act may be cited as the Cemetery Protection Act.
(Source: P.A. 86-1324.)
(765 ILCS 835/.01) (from Ch. 21, par. 14.01)
Sec. .01. For the purposes of this Act, the term:
"Cemetery authority" means an individual or legal entity that owns or controls cemetery lands or property.
"Community mausoleum" means a mausoleum owned and operated by a cemetery authority that contains multiple entombment rights sold to the public.
(Source: P.A. 96-863, eff. 3-1-10; 97-679, eff. 2-6-12.)
(765 ILCS 835/1) (from Ch. 21, par. 15)
Sec. 1. (a) Any person who acts without proper legal authority and who willfully and knowingly destroys or damages the remains of a deceased human being or who desecrates human remains is guilty of a Class 3 felony.
(a-5) Any person who acts without proper legal authority and who willfully and knowingly removes any portion of the remains of a deceased human being from a burial ground where skeletal remains are buried or from a grave, crypt, vault, mausoleum, or other repository of human remains is guilty of a Class 4 felony.
(b) Any person who acts without proper legal authority and who willfully and knowingly:
(b-5) Any person who acts without proper legal authority and who willfully and knowingly defaces, vandalizes, injures, or removes a gravestone or other memorial, monument, or marker commemorating a deceased person or group of persons, whether located within or outside of a recognized cemetery, memorial park, or battlefield is guilty of a Class 4 felony for damaging at least one but no more than 4 gravestones, a Class 3 felony for damaging at least 5 but no more than 10 gravestones, or a Class 2 felony for damaging more than 10 gravestones and shall provide restitution to the cemetery authority or property owner for the amount of any damage caused.
(b-7) Any person who acts without proper legal authority and who willfully and knowingly removes with the intent to resell a gravestone or other memorial, monument, or marker commemorating a deceased person or group of persons, whether located within or outside a recognized cemetery, memorial park, or battlefield, is guilty of a Class 2 felony.
(c) The provisions of this Section shall not apply to the removal or unavoidable breakage or injury by a cemetery authority of anything placed in or upon any portion of its cemetery in violation of any of the rules and regulations of the cemetery authority, nor to the removal of anything placed in the cemetery by or with the consent of the cemetery authority that in the judgment of the cemetery authority has become wrecked, unsightly, or dilapidated.
(d) If an unemancipated minor is found guilty of violating any of the provisions of subsection (b) of this Section and is unable to provide restitution to the cemetery authority or property owner, the parents or legal guardians of that minor shall provide restitution to the cemetery authority or property owner for the amount of any damage caused, up to the total amount allowed under the Parental Responsibility Law.
(d-5) Any person who commits any of the following:
(e) Any person who shall hunt, shoot or discharge any gun, pistol or other missile, within the limits of any cemetery, or shall cause any shot or missile to be discharged into or over any portion thereof, or shall violate any of the rules made and established by the board of directors of such cemetery, for the protection or government thereof, is guilty of a Class C misdemeanor.
(f) Any person who knowingly enters or knowingly remains upon the premises of a public or private cemetery without authorization during hours that the cemetery is posted as closed to the public is guilty of a Class A misdemeanor.
(g) All fines when recovered, shall be paid over by the court or officer receiving the same to the cemetery authority and be applied, as far as possible in repairing the injury, if any, caused by such offense. Provided, nothing contained in this Act shall deprive such cemetery authority or the owner of any interment, entombment, or inurnment right or monument from maintaining an action for the recovery of damages caused by any injury caused by a violation of the provisions of this Act, or of the rules established by the board of directors of such cemetery authority. Nothing in this Section shall be construed to prohibit the discharge of firearms loaded with blank ammunition as part of any funeral, any memorial observance or any other patriotic or military ceremony.
(Source: P.A. 95-331, eff. 8-21-07; 96-863, eff. 3-1-10.)
(765 ILCS 835/2) (from Ch. 21, par. 16)
Sec. 2. The cemetery authority is hereby authorized to make by-laws or rules and regulations for the government thereof, and to make rules regarding the driving of cars, motorcycles, carriages, processions, teams, and the speed thereof, the use of avenues, lots, walks, ponds, water courses, vaults, buildings, or other places within such cemetery, the operations and good management in such cemetery, the protection of visitors, the protection of employees, and for the maintenance of good order and quiet in such cemetery, all such rules to be subject to the rights of interment, entombment, or inurnment right owners, or others, owning any interest in such cemetery; and all persons found guilty of a violation of such rules shall be guilty of a petty offense and shall be punished by a fine of not less than $100, nor more than $500 for each offense. No judge shall be disqualified from hearing any cause that may be brought before him under the provisions of this Act, nor shall any person be disqualified from acting as a juror in such cause, by reason of any interest or ownership they or either of them may have in the interment, entombment, or inurnment rights of such cemetery.
(Source: P.A. 94-44, eff. 6-17-05.)
(765 ILCS 835/3) (from Ch. 21, par. 17)
Sec. 3. The cemetery authority may appoint policemen to protect such cemetery and preserve order therein, and such policemen shall have the same power in respect to any offenses committed in such cemetery, or any violation of this act, that city marshals or policemen in cities have in respect to maintaining order in such cities or arresting for offenses committed therein.
(Source: P.A. 94-44, eff. 6-17-05.)
(765 ILCS 835/4) (from Ch. 21, par. 18)
Sec. 4. The cemetery authority may set apart such portion as they see fit of the moneys received from the sale of the interment, entombment, or inurnment rights, in such cemetery or graveyard, which sums shall be kept separate from all other assets as an especial trust fund, and they shall keep the same invested in safe interest or income paying securities, for the purpose of keeping said cemetery or graveyard, and the interment, entombment, or inurnment rights therein, permanently in good order and repair, and the interest or income derived from such trust fund shall be applied only to that purpose, and shall not be diverted from such use.
(Source: P.A. 94-44, eff. 6-17-05.)
(765 ILCS 835/5) (from Ch. 21, par. 19)
Sec. 5. It shall be the duty of the cemetery authority of a public graveyard to receive by gift or bequest, real or personal property, or the income or avails of property which shall be conveyed in trust for the improvement, maintenance, repair, preservation and ornamentation of such interment, entombment, or inurnment rights or lots, vault or vaults, tomb or tombs, or other such structures in the cemetery or graveyard of which such board or trustees have control, as may be designated by the terms of such gift or bequest, and in accordance with such reasonable rules and regulations therefor, as shall be made by such board of directors or trustees, and such board of directors or trustees shall keep such trust funds invested in safe interest or income bearing securities, the income from which shall be used for the purpose aforesaid.
(Source: P.A. 94-44, eff. 6-17-05.)
(765 ILCS 835/5a) (from Ch. 21, par. 19a)
Sec. 5a. The cemetery authority may invest the funds received under Section 4 or 5 in notes secured by a first mortgage or trust deed upon improved or income producing real estate situated in this State and not exceeding one-half the value thereof at the time the investment is made by the directors. Whenever any cemetery society or cemetery authority acquires property as a result of the foreclosure of such mortgage, or in any other manner, the directors or managing officers of such society or authority have the power to sell and convey the land received.
(Source: P.A. 94-44, eff. 6-17-05.)
(765 ILCS 835/6) (from Ch. 21, par. 20)
Sec. 6. The trust fund mentioned in Sections 4 and 5 of this act, shall be vested in the board of directors and trustees, and the securities taken therefor shall be approved by circuit court for the county wherein such cemetery or graveyard is located; and the board of directors or trustees shall, once in every 2 years, make an itemized report to the court of all such trust funds in their hands, and the securities taken therefor.
(Source: Laws 1965, p. 595.)
(765 ILCS 835/7) (from Ch. 21, par. 21)
Sec. 7. The trust funds, gifts and bequests mentioned in sections four (4) and five (5) of this act, shall be exempt from taxation and from the operation of all laws of mortmain, and laws against perpetuities and accumulations.
(Source: Laws 1889, p. 63.)
(765 ILCS 835/8) (from Ch. 21, par. 21.1)
Sec. 8. If the cemetery is a privately owned cemetery, as defined in Section 2 of the Cemetery Care Act, or a licensed cemetery authority under the Cemetery Oversight Act, or if the burial lot or grave, vault, tomb, or other such structures are in a privately owned cemetery, as defined in Section 2 of the Cemetery Care Act, or a licensed cemetery authority under the Cemetery Oversight Act, then such company or association shall also comply with the provisions of the Cemetery Care Act or Cemetery Oversight Act, whichever is applicable. Furthermore, no cemetery authority company or other legal entity may deny burial space to any person because of race, creed, marital status, sex, national origin, sexual orientation, or color. A cemetery company or other entity operating any cemetery may designate parts of cemeteries or burial grounds for the specific use of persons whose religious code requires isolation. Religious institution cemeteries may limit burials to members of the religious institution and their families.
(Source: P.A. 96-863, eff. 3-1-10.)
(765 ILCS 835/9) (from Ch. 21, par. 21.2)
Sec. 9. When there is no memorial, monument, or marker installed on a cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment rights in a community columbarium; no interment in a cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium; no transfer or assignment of a cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium on the cemetery authority records; no contact by an owner recorded in the cemetery authority records; publication has been made in a newspaper of general circulation in the county in which the interment, entombment, or inurnment rights are located and no response was received; and 50 years have passed since the cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium was sold, there is a presumption that the cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium has been abandoned, unless a specific agreement has been entered into designating said rights to be inviolate. Alternatively, where there is an obligation to pay a cemetery authority, annually or periodically, maintenance or care charges on a cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium, or part thereof, and the owner of or claimant to a right or easement for burial in such cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium, or part thereof, has failed to pay the required annual or periodic maintenance or care charges for a period of 30 years or more, such continuous failure to do so creates and establishes a presumption that the cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium, or part thereof, has been abandoned.
Upon a court's determination of abandonment, the ownership of a right or easement for burial in a cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium, or part thereof, shall be subject to sale in the manner hereinafter provided.
(Source: P.A. 94-44, eff. 6-17-05.)
(765 ILCS 835/10) (from Ch. 21, par. 21.3)
Sec. 10. A cemetery authority may file in the office of the clerk of the circuit court of the county in which the cemetery is located a verified petition praying for the entry of an order adjudging a cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium to have been abandoned. The petition shall describe the cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium alleged to have been abandoned, shall allege ownership by the petitioner of the cemetery, and, if known, the name of the owner of the right or easement for burial in such cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium as is alleged to have been abandoned, or, if the owner thereof is known to the petitioner to be deceased, then the names, if known to petitioner, of such claimants thereto as are the heirs-at-law and next-of-kin or the specific legatees under the will of the owner of the right or easement for burial in such interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium and such other facts as the petitioner may have with respect to ownership of the right or easement for burial in such cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium.
The petition shall also allege the facts with respect to the abandonment of the cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium or facts about the obligation of the owner to pay annual or periodic maintenance or care charges on such cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium, the amount of such charges as are due and unpaid, and shall also allege the continuous failure by the owner or claimant to pay such charges for a period of 30 consecutive years or more.
Irrespective of diversity of ownership of the right or easement for burial therein, a cemetery authority may include in one petition as many cemetery interment rights, entombment rights in a community mausoleum or lawn crypt section, or inurnment rights in a community columbarium as are alleged to have been abandoned.
(Source: P.A. 94-44, eff. 6-17-05.)
(765 ILCS 835/11) (from Ch. 21, par. 21.4)
Sec. 11. All persons so named in such petition, except the petitioner, shall be made parties defendant by name, and if the name or names of any owner or claimant are alleged in the petition to be unknown, such persons shall be made parties defendant under the name and style of "Unknown Owners". All parties defendant shall be notified of the pendency of the proceeding in the same manner as is now or may hereafter be required in other civil cases.
(Source: Laws 1961, p. 2908.)
(765 ILCS 835/12) (from Ch. 21, par. 21.5)
Sec. 12. In the event the owner, the claimant, or the heirs-at-law and next-of-kin or the specific legatees under the will of either the owner or claimant submits proof of ownership to the court or appears and answers the petition, the presumption of abandonment shall no longer exist and the court shall set the matter for hearing upon the petition and such answers thereto as may be filed.
In the event the defendant or defendants fails to appear and answer the petition, or in the event that upon the hearing the court determines from the evidence presented that there has been an abandonment of the cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium for 50 years or a continuous failure to pay the annual or periodic maintenance or care charges on such interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium, or part thereof, for a period of 30 years or more preceding the filing of the petition, then, in either such event, an order shall be entered adjudicating such interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium, to have been abandoned and adjudging the right or easement for burial therein to be subject to sale by the cemetery authority at the expiration of one year from the date of the entry of such order. Upon entry of an order adjudicating abandonment of a cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium, the court shall fix such sum as is deemed a reasonable fee for the services of petitioner's attorney.
(Source: P.A. 94-44, eff. 6-17-05.)
(765 ILCS 835/13) (from Ch. 21, par. 21.6)
Sec. 13. In the event that, at any time within one year after adjudication of abandonment, the owner or claimant of an interment right, entombment rights in a community mausoleum or lawn crypt section, or an inurnment right in a community columbarium which has been adjudged abandoned, shall contact the court or the cemetery authority and pay all maintenance or care charges that are due and unpaid, shall reimburse the cemetery authority for the costs of suit and necessary expenses incurred in the proceeding with respect to such interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium and shall contract for its future care and maintenance, then such lot, or part thereof, shall not be sold as herein provided and, upon petition of the owner or claimant, the order or judgment adjudging the same to have been abandoned shall be vacated as to such interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium.
(Source: P.A. 98-756, eff. 7-16-14.)
(765 ILCS 835/14) (from Ch. 21, par. 21.7)
Sec. 14. After the expiration of one year from the date of entry of an order adjudging an interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium to have been abandoned, a cemetery authority shall have the right to do so and may sell such interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium at public sale and grant an easement therein for burial purposes to the purchaser at such sale, subject to the interment of any human remains theretofore placed therein and the right to maintain memorials placed thereon. A cemetery authority may bid at and purchase such interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium at such sale.
Notice of the time and place of any sale held pursuant to an order adjudicating abandonment of a cemetery interment right, entombment rights in a community mausoleum or lawn crypt section, or inurnment right in a community columbarium shall be published once in a newspaper of general circulation in the county in which the cemetery is located, such publication to be not less than 30 days prior to the date of sale.
The proceeds derived from any sale shall be used to reimburse the petitioner for the costs of suit and necessary expenses, including attorney's fees, incurred by petitioner in the proceeding, and the balance, if any, shall be deposited into the cemetery authority's care fund or, if there is no care fund, used by the cemetery authority for the care of its cemetery and for no other purpose.
(Source: P.A. 98-756, eff. 7-16-14.)
(765 ILCS 835/14.5)
Sec. 14.5. Correction of encroachment on interment, entombment, or inurnment rights.
(a) Whenever a cemetery becomes aware that there is an encroachment on or in the lawful interment, inurnment, or entombment rights of another, and when the cemetery buried or placed or permitted the burial or placement of the encroaching item in or on these rights, the cemetery may correct the encroachment in accordance with this Section. This Section shall not apply to, or be utilized in connection with, any eminent domain, quick-take, or other condemnation proceeding that is designed to relocate a cemetery or portion thereof to another location.
(b) When the encroaching item is a marker, monument or memorial that should be placed on or in another interment, inurnment, or entombment right located within the cemetery, or when the item is the foundation or base for any of the foregoing, the cemetery may with reasonable promptness, and without being required to obtain any permit, relocate the item to its proper place. Notice of the corrective action shall be given no later than 30 days following the correction in accordance with subsection (d) of this Section.
(c) When the encroaching item is a vault, casket, urn, outer burial container, or human remains that should be placed in or on another interment, inurnment, or entombment right located within the cemetery, the cemetery may with reasonable promptness, and without being required to obtain any permit, relocate the item to its proper place. Except as otherwise provided in this subsection, notice of the corrective action shall be given no later than 30 days prior to the correction in accordance with subsection (d) of this Section. When the involved encroachment would, if uncorrected within 30 days, interfere with a scheduled interment, inurnment, or entombment, then the notice shall be given in accordance with subsection (d) of this Section with as much advance notice as reasonably possible or, if advance notice is not reasonably possible, no later than 30 days following the correction. In the event the correction is to occur in a religious cemetery that, for religious reasons, maintains rules that preclude advance notice of corrections, the notice shall occur no later than 30 days following the correction.
(d) Notice under this Section shall be by certified mail or other delivery method that has a confirmation procedure, in 12-point type, to the owner of any affected interment, inurnment, or entombment right or, when the owner is deceased, to the surviving spouse of the deceased, or if none, any surviving children of the deceased, or if no surviving spouse or children, a parent, brother, or sister of the deceased, or, if failing all of the above, any other listed heir of the deceased in the cemetery records. In providing notice, the cemetery authority shall exercise due diligence to engage in a reasonable search of available funeral home of record or cemetery records to obtain the current address of the party to be notified. The notice shall provide a clear statement of the correction taken or to be taken, together with the reasons for the correction, and shall outline a simple process for the notified person to obtain additional information regarding the correction from the cemetery. When advance notice is required, the notice shall inform the notified party of his or her right to be present for any reinterment, reinurnment, or reentombment, as well as his or her option to object by obtaining an injunction enjoining the contemplated correction. The cemetery shall maintain for no less than 5 years a record of any notice provided under this Section.
(e) Nothing in this Section shall make a cemetery financially responsible for the correction of encroachments that are directly or indirectly caused by the owner of an interment, inurnment, or entombment right or by his or her heirs or by an act of God, war, or vandalism. The cemetery shall be financially responsible for the correction of all other encroachments covered by this Section.
(f) Nothing in this Section shall be construed to limit the liability of any party.
(Source: P.A. 93-772, eff. 1-1-05.)
(765 ILCS 835/15) (from Ch. 21, par. 21.8)
Sec. 15. Purchases made pursuant to this Act shall be made in compliance with the "Local Government Prompt Payment Act", approved by the Eighty-fourth General Assembly.
(Source: P.A. 84-731.)
(765 ILCS 835/16)
Sec. 16. When a multiple interment right owner becomes deceased, the ownership of any unused rights of interment shall pass in accordance with the specific bequest in the decedent's will. If there is no will or specific bequest then the ownership and use of the unused rights of interment shall be determined by a cemetery authority in accordance with the information set out on a standard affidavit for cemetery interment rights use form if such a form has been prepared. The unused right of interment shall be used for the interment of the first deceased heir listed on the standard affidavit and continue in sequence until all listed heirs are deceased. In the event that an interment right is not used, the interment right shall pass to the heirs of the heirs of the deceased interment right owner in perpetuity. Except as otherwise provided in this Section, this shall not preclude the ability of the heirs to sell said interment rights, in the event that all listed living heirs are in agreement, and it shall not preclude the ability of a 2/3 majority of the living heirs to sell a specific interment right to the spouse of a living or deceased heir. If the standard affidavit for cemetery interment rights use, showing heirship of decedent interment right owner's living heirs is provided to and followed by a cemetery authority, the cemetery authority shall be released of any liability in relying on that affidavit.
The following is the form of the standard affidavit:
STATE OF ILLINOIS )
) SS
COUNTY OF ....................)
1. A. My place of residence is ........................
B. My post office address is .......................
C. I understand that I am providing the information contained in this affidavit to the ............ ("Cemetery") and the Cemetery shall, in the absence of directions to the contrary in my will, rely on this information to allow the listed individuals to be interred in any unused interment rights in the order of their death.
D. I understand that, if I am an out-of-state resident, I submit myself to the jurisdiction of Illinois courts for all matters related to the preparation and use of this affidavit. My agent for service of process in Illinois is:
Items 2 through 6 must be completed by the executor of the decedent's estate, a personal representative, owner's surviving spouse, or surviving heir.
2. The decedent's name is ..............................
3. The date of decedent's death was ....................
4. The decedent's place of residence immediately before his or her death was ........................................
5. My relationship to the decedent is .................. and I am authorized to sign and file this affidavit.
6. At the time of death, the decedent (had no) (had a) surviving spouse. The name of the surviving spouse, if any, is ....................., and he or she (has) (has not) remarried.
7. The following is a list of the cemetery interment rights that may be used by the heirs if the owner is deceased:
.............................................................
.............................................................
8. The following persons have an ownership interest in and the right to use the cemetery interment rights in the order of their death:
.......................... Address ..........................
.......................... Address ..........................
.......................... Address ..........................
.......................... Address ..........................
.......................... Address ..........................
.......................... Address ..........................
.......................... Address ..........................
9. This affidavit is made for the purpose of obtaining the consent of the undersigned to transfer the right of interment at the above mentioned cemetery property to the listed heirs. Affiants agree that they will save, hold harmless, and indemnify Cemetery, its heirs, successors, employees, and assigns, from all claims, loss, or damage whatsoever that may result from relying on this affidavit to record said transfer in its records and allow interments on the basis of the information contained in this affidavit.
WHEREFORE affiant requests Cemetery to recognize the above named heirs-at-law as those rightfully entitled to the ownership of and use of said interment (spaces) (space).
THE FOREGOING STATEMENT IS MADE UNDER THE PENALTIES OF PERJURY. (A FRAUDULENT STATEMENT MADE UNDER THE PENALTIES OF PERJURY IS PERJURY AS DEFINED IN THE CRIMINAL CODE OF 2012.)
Dated this ........ day of .............., .....
................... (Seal) (To be signed by the owner or the individual who completes items 2 through 6 above.) Subscribed and sworn to before me, a Notary Public in and for the County and State of .............. aforesaid this ........ day of ..............., .....
............................ Notary Public.
(Source: P.A. 97-1150, eff. 1-25-13.)