South Carolina Code 40-8-110. Care and maintenance trust funds; merchandise accounts; financial reports; penalties
(B) At the time of making a sale or receiving the initial deposit on the sale of grave space, niche, or mausoleum crypt, the cemetery company shall deliver to the person to whom the sale is made, or who makes the deposit, an instrument in writing which shall specifically state that the net income of the care and maintenance trust fund must be used solely for the care and maintenance of the cemetery, for reasonable costs of administering the care and maintenance, and for reasonable costs of administering the trust fund. This information must be included in the sales contract.
Terms Used In South Carolina Code 40-8-110
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Board: means the South Carolina Perpetual Care Cemetery Board. See South Carolina Code 40-8-30
- Cemetery: means a place used, dedicated, or designated for cemetery purposes including any one or combination of:
(a) perpetual care cemeteries;
(b) burial parks for earth interment;
(c) mausoleums;
(d) columbariums. See South Carolina Code 40-8-30 - Cemetery company: means a legal entity that owns or controls cemetery lands or property and conducts the business of a cemetery, including all cemeteries owned and operated by cemetery sales organizations or cemetery management organizations or any other entity. See South Carolina Code 40-8-30
- Contract: A legal written agreement that becomes binding when signed.
- Conviction: A judgement of guilt against a criminal defendant.
- Fiscal year: The fiscal year is the accounting period for the government. For the federal government, this begins on October 1 and ends on September 30. The fiscal year is designated by the calendar year in which it ends; for example, fiscal year 2006 begins on October 1, 2005 and ends on September 30, 2006.
- Grave space: means a space of ground in a cemetery intended to be used for the interment in the ground of the remains of a deceased person. See South Carolina Code 40-8-30
- Licensee: means a person granted an authorization to operate pursuant to this chapter and refers to a person holding a license granted pursuant to this chapter. See South Carolina Code 40-8-30
- Mausoleum: means a structure or building substantially exposed aboveground, intended to be used for the entombment of the remains of a deceased person. See South Carolina Code 40-8-30
- Memorial: means a bronze marker set approximately level with the turf for the purpose of identification, or interchanged to mean upright markers in garden sections which are plotted and specified for the use of upright markers. See South Carolina Code 40-8-30
- Merchandise: means items used in connection with grave space, niches, mausoleum crypts, granite, memorials, grave liners, and vaults; however, merchandise shall expressly exclude caskets and cremation urns, burial clothing, facilities used for preparation, viewing, and automotive equipment and transportation. See South Carolina Code 40-8-30
- Perpetual care: means the maintenance and the reasonable administration of the cemetery grounds and buildings in keeping with a cemetery properly maintained using a care and maintenance trust fund. See South Carolina Code 40-8-30
- Person: means an individual, entity, corporation, partnership, joint venture, or association. See South Carolina Code 40-8-30
- Trustee: A person or institution holding and administering property in trust.
(C) A perpetual care cemetery shall deposit into the care and maintenance fund not less than forty dollars or a minimum of ten percent of the sale price, whichever is greater, per grave space and niche, and one hundred dollars per mausoleum crypt sold or a minimum of five percent of the sales price, whichever is greater. Also, for a memorial or grave marker for installation in a cemetery where perpetual care is promised or guaranteed, the cemetery shall transmit to the care and maintenance trust fund an amount equal to a minimum of eight cents per square inch of the memorial’s or the marker’s base. All deposits must be made within sixty days upon receipt of final payment.
(D) Within ninety days after the end of the calendar or fiscal year of the cemetery company, the trustee shall furnish adequate financial reports with respect to the care and maintenance trust fund on forms prescribed and provided by the board. The board shall require the trustee to make any additional financial reports the board considers advisable.
(E) The care and maintenance trust fund must be invested and reinvested by the trustee in the same manner as provided by law for the investment of other trust funds. The fees and other expenses of the trust fund may be paid from the corpus. To the extent that the net income is not sufficient to pay the fees and other expenses, they must be paid by the cemetery company.
(F)(1) Upon payment in full, a licensee receiving funds from the sale of merchandise for use in a cemetery in connection with the burial or commemoration of a deceased human being when the use of contracted merchandise is not requested or required immediately shall store or warehouse the contracted merchandise, or bond or deposit the funds in a merchandise account with a financial institution licensed to do business in this State. Notwithstanding any other provision of law, all funds deposited in the merchandise account must be held for the benefit of the purchaser of the merchandise. Any such merchandise account must be subject to § 40-8-110(G).
The cemetery company shall maintain a record of each deposit into the account, identify the name of the purchaser, the amount of the actual costs to the seller, and the amount of money to be deposited, and maintain a copy of the contract for the merchandise. This section does not prohibit the licensee from commingling the deposits in a fund of this kind to manage and invest the funds.
(2) When a memorial, a mausoleum crypt, or other merchandise is sold in advance of need and not installed, delivered, or bonded until a later date, one hundred percent of the actual cost to the seller at the time of deposit must be placed in a merchandise account within sixty days after completion of the contract with interest to accrue and must not be withdrawn without the consent of the purchaser until the time of delivery or construction.
(3) The funds must be held in a merchandise account as to principal and income earned and must remain intact, until delivery of the merchandise is made by the cemetery company or other entity; however, any service fees charged by the administering financial institution may be deducted from the income. Upon delivery of the merchandise, the cemetery company or other entity shall certify these facts. Upon this certification, the amount of money on deposit to the credit of that particular contract, including principal and income, must be paid to the cemetery company or other entity.
(4) After payment in full and before delivery of merchandise, a purchaser may make written demand for a refund of the amount deposited in the merchandise account to the credit of the purchaser, and within ninety days of receipt of the written demand, the licensee shall deliver the merchandise or refund to the purchaser the amount on deposit to his credit. Upon the refund or delivery of merchandise, the cemetery company is relieved from further liability for this merchandise.
(G) The licensee, annually and within ninety days after the end of the calendar year, shall file a financial report, signed by a licensed accountant, of the merchandise account fund with the board on forms provided by the board setting forth the principal, investments, and payments made and the income earned and disbursed. The board may require the licensee to make additional financial reports the board considers advisable.
(H) The board may cause the examination of the business of a cemetery company or other entity writing contracts for the sale of the property or services described in this section. The written report of the examination must be filed in this office of the board. A person or an entity being examined shall produce the records of the company needed for the examination.
(I) A provision of a contract for the sale of merchandise described in this section which provides that the purchaser or beneficiary may waive this section is void.
(J) Cemetery owners shall have a full and complete schedule of charges for services provided by the cemetery plainly printed or typewritten, posted conspicuously, and maintained, subject to inspection and copying, at the usual place for transacting the regular business of the cemetery.
(K) A cemetery company or other entity failing to make required contributions to a care and maintenance trust fund or to a merchandise account fund is guilty of a misdemeanor and, upon conviction, must be punished pursuant to § 40-8-190.
(L) If a report is not received within the required time, the board may levy and collect a penalty of not less than twenty-five dollars a day or more than one hundred dollars a day for each day of delinquency.