A. In all cemeteries in this state where burial spaces are sold, not less than ten percent (10%) of the purchase price thereof shall be segregated and set aside as a permanent trust fund to be known as the "Perpetual Care Fund". The Perpetual Care Fund shall be invested as hereinafter prescribed, and the income only shall be used in improving, caring for, and embellishing the lots, walks, drives, parks and other improvements in the cemeteries and maintenance of office and care of records.
B. If a cemetery allows a person or other entity to construct or otherwise establish a burial space at the cemetery that is not purchased from the cemetery, the cemetery shall collect from the person or entity an amount not less than ten percent (10%) of the construction or retail cost of the burial space, to be deposited in the Perpetual Care Fund of the cemetery.
C. The owner or designated agent of a cemetery shall set aside and deposit the amounts required in subsections A and B of this section in a financial institution authorized by law, as trustee, to administer the trusts, not later than thirty (30) days after the close of the month in which was received the final payment on the purchase price of each burial space. The amounts shall be held by the trustee of the Perpetual Care Fund in trust for the specific purposes stated in a written trust agreement. The trust agreement may provide for an individual or other entity to exist as cotrustee; provided, however, in no instance shall the cotrustee have sole access to deposits held in the Perpetual Care Fund, except as otherwise provided in this act.
D. Notwithstanding the requirements of subsection C of this section, if the total amount of the Perpetual Care Fund maintained by the cemetery is an amount equal to or less than the standard insurance amount per depositor as provided by the Federal Deposit Insurance Corporation, the cemetery may, in lieu of depositing the funds in a trust account, purchase a certificate of deposit from a financial institution according to the terms of this subsection. The certificate of deposit shall be pledged in favor of the Oklahoma Insurance Department with no right of withdrawal by the cemetery, whether before or after maturity, except upon application to, and approval by, the Insurance Commissioner. The terms of the certificate of deposit shall provide for notice to the Insurance Department within thirty (30) days prior to maturity. Only interest accruing from the certificate of deposit may be withdrawn by the cemetery and shall be considered income for purposes of subsection A of this section. If a cemetery maintains a certificate of deposit in lieu of a trust fund, as it collects funds which are required to be deposited into its Perpetual Care Fund, it shall segregate those funds from its other operating funds and contribute those funds to the certificate of deposit upon its next maturity date. If a Perpetual Care Fund of a cemetery is maintained in a certificate of deposit, but grows in an amount greater than the standard insurance amount per depositor as provided by the Federal Deposit Insurance Corporation, the cemetery shall comply with the provisions of subsection C of this section by placing all of its Perpetual Care Fund in trust and shall no longer maintain a certificate of deposit as authorized by this subsection.
E. A cemetery regulated under this section may choose distribution from the perpetual care fund in the form of either all net ordinary income or an amount, not to be reduced by taxes or fees, not exceeding five percent (5%) of the average fair market value of the trust funds.
1. A cemetery may select a distribution method by delivering written instructions to the trustee of the fund no later than thirty (30) days prior to the beginning of the calendar year. Such notification shall also be provided to the Insurance Commissioner. The distribution method and distribution rate selected shall remain in effect unless the cemetery notifies the trustee and the Insurance Commissioner of its desire to effect a change.
2. Disbursements from the trust shall be made on a monthly, quarterly, semi-annual or annual basis, as agreed upon by the cemetery and the trustee.
3. In the event that the trustee does not receive written instructions from the cemetery informing the trustee of the method of calculation chosen, then the trustee shall calculate and disburse the net ordinary income, as earned, on a monthly basis.
4. If the cemetery company selects a distribution based on the average fair market value calculation, the trustees must ensure that an investment policy is in place whose goals and objectives are supportive of the growth of the care and maintenance fund. In order to withdraw up to five percent (5%) of trust funds, the current market value of the trust after the withdrawal shall be greater than the aggregate of eighty percent (80%) of the market value of the trust as of the preceding calendar year, plus the total contributions made to trust principal from such date to the date that the method of calculation is selected. If this is not the case, distributions will be limited for that year to the net ordinary income.
5. The Insurance Commissioner may limit or prohibit the distribution based on average fair market value calculation in situations where investment returns and distribution practices have not resulted in sufficient protection of the care fund's trust principal from a three to five year analysis, or where the trustee and any investment manager are not able to demonstrate sufficient knowledge and expertise regarding the effective implementation of distributing income for the maintenance of the cemetery using this method.
F. Without regard to the withdrawal method selected pursuant to subsection E of this section, capital gains taxes shall be paid from the trust principal.
Added by Laws 1953, p. 16, § 3, emerg. eff. May 19, 1953. Amended by Laws 1993, c. 218, § 2, eff. Sept. 1, 1993; Laws 2007, c. 80, § 9, eff. Jan. 1, 2008; Laws 2008, c. 275, § 8, eff. July 1, 2008; Laws 2010, c. 58, § 3, eff. July 1, 2010. Renumbered from Title 8, § 163 by Laws 2010, c. 58, § 28, eff. July 1, 2010; Amended by Laws 2016, c. 118, § 4, eff. Nov. 1, 2016.