(1) Upon receiving anything of value under a prearrangement sales contract or preconstruction sales contract, the certified provider who sold the contract shall deposit the following amounts into one or more trust funds maintained pursuant to ORS § 97.923 to 97.949, 97.992, 97.994 and 692.180:

(a) If the amount received is in payment of a guaranteed prearrangement sales contract or guaranteed preconstruction sales contract, 90 percent of the amount received. The certified provider who sold the contract is entitled to receive the remaining 10 percent.

(b) If the amount received is in payment of a nonguaranteed prearrangement sales contract or nonguaranteed preconstruction sales contract, 100 percent of the amount received.

(2) A certified provider shall pay all trust funds required by ORS § 97.923 to 97.949, 97.992, 97.994 and 692.180 directly to a master trustee or depository within five business days after the certified provider receives the funds from the purchaser.

(3)(a) If a certified provider places trust funds in a depository, the funds may be invested only in:

(A) Certificates of deposit;

(B) United States Treasury bills;

(C) Issues of United States government agencies;

(D) Guaranteed investment contracts; or

(E) Banker’s acceptances or corporate bonds rated A or better by Standard & Poor’s Corporation or Moody’s Investors Service.

(b) Prearrangement sales contract trust fund and preconstruction sales contract trust fund accounts must be in the name of the certified provider who sold the contract under ORS § 97.923 to 97.949, 97.992, 97.994 and 692.180.

(4) A certified provider shall identify funds deposited in the trust fund account in the records of the certified provider by the name of the purchaser and beneficiary. The certified provider shall maintain records that specify the allocation of all earnings to each prearrangement sales contract or preconstruction sales contract. Nothing prohibits the certified provider from directing a master trustee or a depository to commingle the deposits in a trust fund account for purposes of managing and investing the funds. A joint trust fund account must be identified by the name of the certified provider.

(5) When a prearrangement sales contract or preconstruction sales contract includes rights of interment and funeral or cemetery merchandise or services, the terms of the contract must clearly provide for the application of payments received under the contract.

(6) An entity engaging in prearrangement sales or preconstruction sales that involve the sale of items subject to trust and any item not subject to trust may not increase the sales price of those items not subject to trust with the purpose of allocating a lesser sales price to items that require a deposit of trust funds.

(7)(a) Except when the Director of the Department of Consumer and Business Services has made the determination described in subsection (9)(a) of this section, a certified provider may appoint a successor certified provider. The master trustee or depository shall release the trust funds deposited under ORS § 97.923 to 97.949, 97.992, 97.994 and 692.180 and accrued income only to the successor certified provider as described in ORS § 97.943 and 97.944.

(b) If appointing a successor certified provider under this subsection, the original certified provider shall notify the director of the proposed change at least 30 days before the appointment.

(8) A certified provider may appoint a successor depository or a master trustee and shall notify the director of the proposed change at least 30 days before the appointment.

(9)(a) The director may appoint a successor certified provider upon a determination that:

(A) The original certified provider has failed to perform the duties of a certified provider;

(B) The certificate issued to the original certified provider has been revoked or surrendered; and

(C) The appointment of a successor certified provider is necessary to protect the interests of the purchasers and beneficiaries of prearrangement sales contracts or preconstruction sales contracts.

(b) Depositories or master trustees holding deposits of trust funds by the original certified provider shall change their records to reflect the appointment of a successor certified provider upon receipt of written notice of the appointment from the director.

(10) A trust fund account must be a single purpose fund. In the event of the certified provider’s bankruptcy, the funds and accrued income are not available to any creditor as assets of the certified provider, but must be distributed to the purchasers or managed for the purchasers’ benefit by the trustee in bankruptcy, receiver or assignee.

(11)(a) If the original certified provider is licensed under ORS Chapter 692 and voluntarily surrenders the license to the State Mortuary and Cemetery Board, prearrangement sales contracts and preconstruction sales contracts must be transferred to the successor certified provider appointed by the director.

(b) If the original certified provider is not licensed under ORS Chapter 692, upon presentation of proof of the dissolution or insolvency, or merger with another certified provider, of the original certified provider, the depository shall release the prearrangement trust fund deposits or preconstruction trust fund deposits to the purchaser.

(c) If the original certified provider is licensed under ORS Chapter 692, upon proof of the insolvency or involuntary surrender of the license of the original certified provider, the depository shall release the prearrangement trust fund deposits or preconstruction trust fund deposits to the purchaser.

(12) The purchaser or beneficiary of a prearrangement sales contract or preconstruction sales contract may be named cotrustee with the certified provider with the written consent of the purchaser or beneficiary.

(13) A certified provider who has not appointed a master trustee and is placing funds with a depository shall have an annual audit of all trust account funds performed by an independent certified public accountant in accordance with generally accepted accounting procedures. The certified provider shall provide the audit results to the director as part of the annual report required under ORS § 97.933. [Formerly 128.423; 2007 c.661 § 19; 2012 c.7 § 8]

See note under 97.923.