(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:
(I) 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.
(II) 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.
(III) 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
(b) Population means the people residing within a twenty-mile radius of the
location of the endowment care cemetery, the population figure to be taken from
the latest federal decennial census.
(c) 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.
(4) A cemetery authority of a nonendowment care cemetery which converts
to operation as 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.
(5) The cemetery authority of an endowment care cemetery that constructs
foundations for 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.
(6) The cemetery authority of an endowment care cemetery shall keep in its
principal office 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.
(7) (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:
(I) All net income, including net realized capital gains; or
(II) An amount set and administered in accordance with part 3 of article 1.2 of
title 15 for unitrust elections.
(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.
(II) Disbursements from the trust shall be made on a monthly, quarterly,
semi-annual, or annual 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.
(III) The fiduciary is subject to part 3 of article 1.2 of title 15 when
administering an endowment care fund for which the unitrust election has been
made; except that, in the event of a conflict between this section and part 3 of
article 1.2 of title 15, 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.