Public Act 097-0593
 
SB0675 EnrolledLRB097 04438 RPM 44477 b

    AN ACT concerning regulation.
 
    Be it enacted by the People of the State of Illinois,
represented in the General Assembly:
 
    Section 5. The Illinois Funeral or Burial Funds Act is
amended by changing Sections 2, 3, and 3a-5 as follows:
 
    (225 ILCS 45/2)  (from Ch. 111 1/2, par. 73.102)
    Sec. 2. (a) If a purchaser selects a trust arrangement to
fund the pre-need contract, all trust deposits as determined by
Section 1b shall be made within 30 days of receipt.
    (b) A trust established under this Act must be maintained
with a corporate fiduciary as defined in Section 1-5.05 of the
Corporate Fiduciary Act or with a foreign corporate fiduciary
recognized by Article IV of the Corporate Fiduciary Act.
    (c) Trust agreements and amendments to the trust agreements
used to fund a pre-need contract shall be filed with the
Comptroller.
    (d) (Blank).
    (e) A seller or provider shall furnish to the trustee and
depositary the name of each payor and the amount of payment on
each such account for which deposit is being so made. Nothing
shall prevent the trustee from commingling the deposits in any
such trust fund for purposes of its management and the
investment of its funds as provided in the Common Trust Fund
Act. In addition, multiple trust funds maintained under this
Act may be commingled or commingled with other funeral or
burial related trust funds if all record keeping requirements
imposed by law are met.
    (f) (Blank).
    (g) Upon no less than 30 days prior notice to the
Comptroller, the seller may change the trustee of the fund.
Failure to provide the Comptroller with timely prior notice is
an intentional violation of this Act.
    (h) A trustee shall at least annually furnish to each
purchaser a statement containing: (1) the receipts,
disbursements, and inventory of the trust, including an
explanation of any fees or expenses charged by the trustee
under Section 5 of this Act or otherwise, (2) an explanation of
the purchaser's right to a refund, if any, under this Act, and
(3) identifying the primary regulator of the trust as a
corporate fiduciary under state or federal law.
(Source: P.A. 96-879, eff. 2-2-10.)
 
    (225 ILCS 45/3)  (from Ch. 111 1/2, par. 73.103)
    Sec. 3. Licensing.
    (a) No person, firm, partnership, association or
corporation may act as seller without first securing from the
State Comptroller a license to so act. Application for such
license shall be in writing, signed by the applicant and duly
verified on forms furnished by the Comptroller. Each
application shall contain at least the following:
        (1) The full name and address (both residence and place
    of business) of the applicant, and every member, officer
    and director thereof if the applicant is a firm,
    partnership, association, or corporation, and of every
    shareholder holding more than 10% of the corporate stock if
    the applicant is a corporation;
        (2) A statement of the applicant's assets and
    liabilities;
        (3) The name and address of the applicant's principal
    place of business at which the books, accounts, and records
    shall be available for examination by the Comptroller as
    required by this Act;
        (4) The names and addresses of the applicant's branch
    locations at which pre-need sales shall be conducted and
    which shall operate under the same license number as the
    applicant's principal place of business;
        (5) For each individual listed under item (1) above, a
    detailed statement of the individual's business experience
    for the 10 years immediately preceding the application; any
    present or prior connection between the individual and any
    other person engaged in pre-need sales; any felony or
    misdemeanor convictions for which fraud was an essential
    element; any charges or complaints lodged against the
    individual for which fraud was an essential element and
    which resulted in civil or criminal litigation; any failure
    of the individual to satisfy an enforceable judgment
    entered against him based upon fraud; and any other
    information requested by the Comptroller relating to past
    business practices of the individual. Since the
    information required by this item (5) may be confidential
    or contain proprietary information, this information shall
    not be available to other licensees or the general public
    and shall be used only for the lawful purposes of the
    Comptroller in enforcing this Act;
        (6) The name of the trustee and, if applicable, the
    names of the advisors to the trustee, including a copy of
    the proposed trust agreement under which the trust funds
    are to be held as required by this Act; and
        (7) Such other information as the Comptroller may
    reasonably require in order to determine the qualification
    of the applicant to be licensed under this Act.
    (b) Applications for license shall be accompanied by a
fidelity bond executed by the applicant and a surety company
authorized to do business in this State or an irrevocable,
unconditional letter of credit issued by a bank, credit union,
or trust company authorized to do business in the State of
Illinois, as approved by the State Comptroller, in such amount
not exceeding $10,000 as the Comptroller may require. If, after
notice and an opportunity to be heard, it has been determined
that a licensee has violated this Act within the past 5
calendar years, the Comptroller may require an additional bond
or letter of credit from the licensee from time to time in
amounts equal to one-tenth of such trust funds, which bond or
letter of credit shall run to the Comptroller for the use and
benefit of the beneficiaries of such trust funds.
    The licensee shall keep accurate accounts, books and
records in this State, at the principal place of business
identified in the licensee's license application or as
otherwise approved by the Comptroller in writing, of all
transactions, copies of all pre-need contracts, trust
agreements, and other agreements, dates and amounts of payments
made and accepted thereon, the names and addresses of the
contracting parties, the persons for whose benefit such funds
are accepted, and the names of the depositaries of such funds.
Each licensee shall maintain the documentation for a period of
3 years after the licensee has fulfilled his obligations under
the pre-need contract. Additionally, for a period not to exceed
6 months after the performance of all terms in a pre-need sales
contract, the licensee shall maintain copies of the contract at
the licensee branch location where the contract was entered or
at some other location agreed to by the Comptroller in writing.
If an insurance policy or tax-deferred annuity is used to fund
the pre-need contract, the licensee under this Act shall keep
and maintain accurate accounts, books, and records in this
State, at the principal place of business identified in the
licensee's application or as otherwise approved by the
Comptroller in writing, of all insurance policies and
tax-deferred annuities used to fund the pre-need contract, the
name and address of insured, annuitant, and initial
beneficiary, and the name and address of the insurance company
issuing the policy or annuity. If a life insurance policy or
tax-deferred annuity is used to fund a pre-need contract, the
licensee shall notify the insurance company of the name of each
pre-need contract purchaser and the amount of each payment when
the pre-need contract, insurance policy or annuity is
purchased.
    The licensee shall make reports to the Comptroller annually
or at such other time as the Comptroller may require, on forms
furnished by the Comptroller. The licensee shall file the
annual report with the Comptroller within 75 days after the end
of the licensee's fiscal year. The Comptroller shall for good
cause shown grant an extension for the filing of the annual
report upon the written request of the licensee. Such extension
shall not exceed 60 days. If a licensee fails to submit an
annual report to the Comptroller within the time specified in
this Section, the Comptroller shall impose upon the licensee a
penalty of $5 per day for the first 15 days past due, $10 per
day for 16 through 30 days past due, $15 per day for 31 through
45 days past due, and $20 per day for the 46th day and every day
thereafter for each and every day the licensee remains
delinquent in submitting the annual report. The Comptroller may
abate all or part of the $5 daily penalty for good cause shown.
Every application shall be accompanied by a check or money
order in the amount of $25 and every report shall be
accompanied by a check or money order in the amount of $10
payable to: Comptroller, State of Illinois.
    The licensee shall make all required books and records
pertaining to trust funds, insurance policies, or tax-deferred
annuities available to the Comptroller for examination. The
Comptroller, or a person designated by the Comptroller who is
trained to perform such examinations, may at any time
investigate the books, records and accounts of the licensee
with respect to trust funds, insurance policies, or
tax-deferred annuities and for that purpose may require the
attendance of and examine under oath all persons whose
testimony he may require. The licensee shall pay a fee for such
examination in accordance with a schedule established by the
Comptroller. The fee shall not exceed the cost of such
examination. For pre-need contracts funded by trust
arrangements, the cost of an initial examination shall be borne
by the licensee if it has $10,000 or more in trust funds,
otherwise, by the Comptroller. The charge made by the
Comptroller for an examination shall be based upon the total
amount of trust funds held by the licensee at the end of the
calendar or fiscal year for which the report is required by
this Act and shall be in accordance with the following
schedule:
Less than $10,000.................................no charge;
$10,000 or more but less than $50,000...................$10;
$50,000 or more but less than $100,000..................$40;
$100,000 or more but less than $250,000.................$80;
$250,000 or more........................................$100.
    The Comptroller may order additional audits or
examinations as he or she may deem necessary or advisable to
ensure the safety and stability of the trust funds and to
ensure compliance with this Act. These additional audits or
examinations shall only be made after good cause is established
by the Comptroller in the written order. The grounds for
ordering these additional audits or examinations may include,
but shall not be limited to:
        (1) material and unverified changes or fluctuations in
    trust balances or insurance or annuity policy amounts;
        (2) the licensee changing trustees more than twice in
    any 12-month period;
        (3) any withdrawals or attempted withdrawals from the
    trusts, insurance policies, or annuity contracts in
    violation of this Act; or
        (4) failure to maintain or produce documentation
    required by this Act for deposits into trust accounts,
    trust investment activities, or life insurance or annuity
    policies.
    The licensee shall bear the full cost of that examination
or audit, up to a maximum of $20,000. The Comptroller may elect
to pay for the examination or audit and receive reimbursement
from the licensee. Payment of the costs of the examination or
audit by a licensee shall be a condition of receiving,
maintaining, or renewing a license under this Act. All moneys
received by the Comptroller for examination or audit fees shall
be maintained in a separate account to be known as the
Comptroller's Administrative Fund. This Fund, subject to
appropriation by the General Assembly, may be utilized by the
Comptroller for enforcing this Act and other purposes that may
be authorized by law.
    For pre-need contracts funded by life insurance or a
tax-deferred annuity, the cost of an examination shall be borne
by the licensee. The fee schedule for such examination shall be
established in rules promulgated by the Comptroller. In the
event such investigation or other information received by the
Comptroller discloses a substantial violation of the
requirements of this Act, the Comptroller shall revoke the
license of such person upon a hearing as provided in this Act.
Such licensee may terminate all further responsibility for
compliance with the requirements of this Act by voluntarily
surrendering the license to the Comptroller, or in the event of
its loss, furnishing the Comptroller with a sworn statement to
that effect, which states the licensee's intention to
discontinue acceptance of funds received under pre-need
contracts. Such license or statement must be accompanied by an
affidavit that said licensee has lawfully expended or refunded
all funds received under pre-need contracts, and that the
licensee will accept no additional sales proceeds. The
Comptroller shall immediately cancel or revoke said license.
(Source: P.A. 96-879, eff. 2-2-10.)
 
    (225 ILCS 45/3a-5)
    Sec. 3a-5. License requirements.
    (a) Every license issued by the Comptroller shall state the
number of the license, the business name and address of the
licensee's principal place of business, each branch location
also operating under the license, and the licensee's parent
company, if any. The license shall be conspicuously posted in
each place of business operating under the license. The
Comptroller may issue such additional licenses as may be
necessary for licensee branch locations upon compliance with
the provisions of this Act governing an original issuance of a
license for each new license.
    (b) Individual salespersons representing a licensee shall
not be required to obtain licenses in their individual
capacities, but must acknowledge, by affidavit, that they have
been provided with a copy of and have read this Act. The
licensee shall retain copies of the affidavits of its sellers
for its records and shall make the affidavits available to the
Comptroller for examination upon request.
    (c) The licensee shall be responsible for the activities of
any person representing the licensee in selling or offering a
pre-need contract for sale.
    (d) Any person not selling on behalf of a licensee shall
obtain its own license.
    (e) No license shall be transferable or assignable without
the express written consent of the Comptroller. A transfer of
more than 50% of the ownership of any business licensed
hereunder shall be deemed to be an attempted assignment of the
license originally issued to the licensee for which consent of
the Comptroller shall be required.
    (f) Every license issued hereunder shall be renewed every 5
years for a renewal fee of $100. The renewal fee shall be
deposited into the Comptroller's Administrative Fund remain in
force until it has been suspended, surrendered, or revoked in
accordance with this Act. The Comptroller, upon the request of
an interested person or on his own motion, may issue new
licenses to a licensee whose license or licenses have been
revoked, if no factor or condition then exists which would have
warranted the Comptroller to originally refuse the issuance of
such license.
(Source: P.A. 92-419, eff. 1-1-02.)
 
    Section 10. The Cemetery Oversight Act is amended by
changing Sections 15-15, 15-40, and 75-55 as follows:
 
    (225 ILCS 411/15-15)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 15-15. Care funds; deposits; investments.
    (a) Whenever a cemetery authority accepts care funds,
either in connection with the sale or giving away at an imputed
value of an interment right, entombment right, or inurnment
right, or in pursuance of a contract, or whenever, as a
condition precedent to the purchase or acceptance of an
interment right, entombment right, or inurnment right, such
cemetery authority shall establish a care fund or deposit the
funds in an already existing care fund.
    (b) The cemetery authority shall execute and deliver to the
person from whom it received the care funds an instrument in
writing that shall specifically state: (i) the nature and
extent of the care to be furnished and (ii) that such care
shall be furnished only in so far as net income derived from
the amount deposited in trust will permit (the income from the
amount so deposited, less necessary expenditures of
administering the trust, shall be deemed the net income).
    (c) The setting-aside and deposit of care funds shall be
made by such cemetery authority no later than 30 days after the
close of the month in which the cemetery authority gave away
for an imputed value or received the final payment on the
purchase price of interment rights, entombment rights, or
inurnment rights, or received the final payment for the general
or special care of a lot, grave, crypt, or niche or of a family
mausoleum, memorial, marker, or monument, and such amounts
shall be held by the trustee of the care funds of such cemetery
authority in trust and in perpetuity for the specific purposes
stated in the written instrument described in subsection (b).
For all care funds received by a cemetery authority, except for
care funds received by a cemetery authority pursuant to a
specific gift, grant, contribution, payment, legacy, or
contract that are subject to investment restrictions more
restrictive than the investment provisions set forth in this
Act, and except for care funds otherwise subject to a trust
agreement executed by a person or persons responsible for
transferring the specific gift, grant, contribution, payment,
or legacy to the cemetery authority that contains investment
restrictions more restrictive than the investment provisions
set forth in this Act, the cemetery authority may, without the
necessity of having to obtain prior approval from any court in
this State, designate a new trustee in accordance with this Act
and invest the care funds in accordance with this Section,
notwithstanding any contrary limitation contained in the trust
agreement.
    (d) Any cemetery authority engaged in selling or giving
away at an imputed value interment rights, entombment rights,
or inurnment rights, in conjunction with the selling or giving
away at an imputed value any other merchandise or services not
covered by this Act, shall be prohibited from increasing the
sales price or imputed value of those items not requiring a
care fund deposit under this Act with the purpose of allocating
a lesser sales price or imputed value to items that require a
care fund deposit.
    (e) If any sale that requires a deposit to a cemetery
authority's care fund is made by a cemetery authority on an
installment basis, and the installment contract is factored,
discounted, or sold to a third party, then the cemetery
authority shall deposit the amount due to the care fund within
30 days after the close of the month in which the installment
contract was factored, discounted, or sold. If, subsequent to
such deposit, the purchaser defaults on the contract such that
no care fund deposit on that contract would have been required,
then the cemetery authority may apply the amount deposited as a
credit against future required deposits.
    (f) The trust authorized by this Section shall be a single
purpose trust fund. In the event of the cemetery authority's
bankruptcy, insolvency, or assignment for the benefit of
creditors, or an adverse judgment, the trust funds shall not be
available to any creditor as assets of the cemetery authority
or to pay any expenses of any bankruptcy or similar proceeding,
but shall be retained intact to provide for the future
maintenance of the cemetery. Except in an action by the
Department to revoke a license issued pursuant to this Act and
for creation of a receivership as provided in this Act, the
trust shall not be subject to judgment, execution, garnishment,
attachment, or other seizure by process in bankruptcy or
otherwise, nor to sale, pledge, mortgage, or other alienation,
and shall not be assignable except as approved by the
Comptroller Department.
(Source: P.A. 96-863, eff. 3-1-10.)
 
    (225 ILCS 411/15-40)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 15-40. Trust examinations and audits.
    (a) The Comptroller Department shall examine at least
annually every licensee who holds $250,000 or more in its care
funds. For that purpose, the Comptroller Department shall have
free access to the office and places of business and to such
records of all licensees and of all trustees of the care funds
of all licensees as shall relate to the acceptance, use, and
investment of care funds. The Comptroller Department may
require the attendance of and examine under oath all persons
whose testimony may be required relative to such business. In
such cases the Comptroller Department, or any qualified
representative of the Comptroller Department whom the
Comptroller Department may designate, may administer oaths to
all such persons called as witnesses, and the Comptroller
Department, or any such qualified representative of the
Comptroller Department, may conduct such examinations. The
cost of an initial examination shall be determined by rule.
    (b) The Comptroller Department may order additional audits
or examinations as it may deem necessary or advisable to ensure
the safety and stability of the trust funds and to ensure
compliance with this Act. These additional audits or
examinations shall only be made after good cause is established
by the Comptroller Department in the written order. The grounds
for ordering these additional audits or examinations may
include, but shall not be limited to:
        (1) material and unverified changes or fluctuations in
    trust balances;
        (2) the licensee changing trustees more than twice in
    any 12-month period;
        (3) any withdrawals or attempted withdrawals from the
    trusts in violation of this Act; or
        (4) failure to maintain or produce documentation
    required by this Act.
(Source: P.A. 96-863, eff. 3-1-10.)
 
    (225 ILCS 411/75-55)
    (Section scheduled to be repealed on January 1, 2021)
    Sec. 75-55. Transition.
    (a) Within 60 days after the effective date of this Act,
the Comptroller shall provide the Department copies of records
in the Comptroller's possession pertaining to the Cemetery Care
Act and the Crematory Regulation Act that are necessary for the
Department's immediate responsibilities under this Act. All
other records pertaining to the Cemetery Care Act with the
exception of records pertaining to care funds and the Crematory
Regulation Act shall be transferred to the Department by March
1, 2012. In the case of records that pertain both to the
administration of the Cemetery Care Act or the Crematory
Regulation Act and to a function retained by the Comptroller,
the Comptroller, in consultation with the Department, shall
determine, within 60 days after the repeal of the Cemetery Care
Act, whether the records shall be transferred, copied, or left
with the Comptroller; until this determination has been made
the transfer shall not occur.
    (b) (Blank). A person licensed under one of the Acts listed
in subsection (a) of this Section or regulated under the
Cemetery Association Act shall continue to comply with the
provisions of those Acts until such time as the person is
licensed under this Act or those Acts are repealed or the
amendatory changes made by this amendatory Act of the 96th
General Assembly take effect, as the case may be, whichever is
earlier.
    (c) To support the costs that may be associated with
implementing and maintaining a licensure and regulatory
process for the licensure and regulation of cemetery
authorities, cemetery managers, customer service employees,
and cemetery workers, all cemetery authorities not maintaining
a full exemption or partial exemption shall pay a one-time fee
of $20 to the Department plus an additional charge of $1 per
burial unit per year within the cemetery. The Department may
establish forms for the collection of the fee established under
this subsection and shall deposit such fee into the Cemetery
Oversight Licensing and Disciplinary Fund. The Department may
begin to collect the aforementioned fee after the effective
date of this Act. In addition, the Department may establish
rules for the collection process, which may include, but shall
not be limited to, dates, forms, enforcement, or other
procedures necessary for the effective collection, deposit,
and overall process regarding this Section.
    (d) Any cemetery authority that fails to pay to the
Department the required fee or submits the incorrect amount
shall be subject to the penalties provided for in Section
25-110 of this Act.
    (e) Except as otherwise specifically provided, all fees,
fines, penalties, or other moneys received or collected
pursuant to this Act shall be deposited in the Cemetery
Oversight Licensing and Disciplinary Fund.
    (f) (Blank). All proportionate funds held in the
Comptroller's Administrative Fund related to unexpended moneys
collected under the Cemetery Care Act and the Crematory
Regulation Act shall be transferred to the Cemetery Oversight
Licensing and Disciplinary Fund within 60 days after the
effective date of the repeal of the Cemetery Care Act.
    (g) (Blank). Personnel employed by the Comptroller on
February 29, 2012, to perform the duties pertaining to the
administration of the Cemetery Care Act and the Crematory
Regulation Act, are transferred to the Department on March 1,
2012.
    The rights of State employees, the State, and its agencies
under the Comptroller Merit Employment Code and applicable
collective bargaining agreements and retirement plans are not
affected under this Act, except that all positions transferred
to the Department shall be subject to the Personnel Code
effective March 1, 2012.
    All transferred employees who are members of collective
bargaining units shall retain their seniority, continuous
service, salary, and accrued benefits. During the pendency of
the existing collective bargaining agreement, the rights
provided for under that agreement shall not be abridged.
    The Department shall continue to honor during their
pendency all bargaining agreements in effect at the time of the
transfer and to recognize all collective bargaining
representatives for the employees who perform or will perform
functions transferred by this Act. For all purposes with
respect to the management of the existing agreement and the
negotiation and management of any successor agreements, the
Department shall be deemed the employer of employees who
perform or will perform functions transferred to the Department
by this Act.
(Source: P.A. 96-863, eff. 3-1-10.)
 
    Section 15. The Illinois Pre-Need Cemetery Sales Act is
amended by changing Sections 6, 8, 15, and 20 as follows:
 
    (815 ILCS 390/6)  (from Ch. 21, par. 206)
    Sec. 6. License application.
    (a) An application for a license shall be made in writing
to the Comptroller on forms prescribed by him or her, signed by
the applicant under oath verified by a notary public, and
accompanied by a non-returnable $125 $25 application fee, $100
of which shall be deposited into the Comptroller's
Administrative Fund. The Comptroller may prescribe abbreviated
application forms for persons holding a license under the
Cemetery Care Act. Applications (except abbreviated
applications) must include at least the following information:
        (1) The full name and address, both residence and
    business, of the applicant if the applicant is an
    individual; of every member if applicant is a partnership;
    of every member of the Board of Directors if applicant is
    an association; and of every officer, director and
    shareholder holding more than 10% of the corporate stock if
    applicant is a corporation;
        (2) A detailed statement of applicant's assets and
    liabilities;
        (2.1) The name and address of the applicant's principal
    place of business at which the books, accounts, and records
    are available for examination by the Comptroller as
    required by this Act;
        (2.2) The name and address of the applicant's branch
    locations at which pre-need sales will be conducted and
    which will operate under the same license number as the
    applicant's principal place of business;
        (3) For each individual listed under (1) above, a
    detailed statement of the individual's business experience
    for the 10 years immediately preceding the application; any
    present or prior connection between the individual and any
    other person engaged in pre-need sales; any felony or
    misdemeanor convictions for which fraud was an essential
    element; any charges or complaints lodged against the
    individual for which fraud was an essential element and
    which resulted in civil or criminal litigation; any failure
    of the individual to satisfy an enforceable judgment
    entered against him or her based upon fraud; and any other
    information requested by the Comptroller relating to the
    past business practices of the individual. Since the
    information required by this paragraph may be confidential
    or contain proprietary information, this information shall
    not be available to other licensees or the general public
    and shall be used only for the lawful purposes of the
    Comptroller in enforcing this Act;
        (4) The name of the trustee and, if applicable, the
    names of the advisors to the trustee, including a copy of
    the proposed trust agreement under which the trust funds
    are to be held as required by this Act;
        (5) Where applicable, the name of the corporate surety
    company providing the performance bond for the
    construction of undeveloped spaces and a copy of the bond;
    and
        (6) Such other information as the Comptroller may
    reasonably require in order to determine the qualification
    of the applicant to be licensed under this Act.
    (b) Applications for license shall be accompanied by a
fidelity bond executed by the applicant and a security company
authorized to do business in this State in such amount, not
exceeding $10,000, as the Comptroller may require. The
Comptroller may require additional bond from time to time in
amounts equal to one-tenth of such trust funds but not to
exceed $100,000, which bond shall run to the Comptroller for
the use and benefit of the beneficiaries of such trust funds.
Such licensee may by written permit of the Comptroller be
authorized to operate without additional bond, except such
fidelity bond as may be required by the Comptroller for the
protection of the licensee against loss by default by any of
its employees engaged in the handling of trust funds.
    (c) Any application not acted upon within 90 days may be
deemed denied.
(Source: P.A. 92-419, eff. 1-1-02.)
 
    (815 ILCS 390/8)  (from Ch. 21, par. 208)
    Sec. 8. (a) Every license issued by the Comptroller shall
state the number of the license, the business name and address
of the licensee's principal place of business, each branch
location also operating under the license, and the licensee's
parent company, if any. The license shall be conspicuously
posted in each place of business operating under the license.
The Comptroller may issue additional licenses as may be
necessary for license branch locations upon compliance with the
provisions of this Act governing an original issuance of a
license for each new license.
    (b) Individual salespersons representing a licensee shall
not be required to obtain licenses in their individual
capacities but must acknowledge, by affidavit, that they have
been provided a copy of and have read this Act. The licensee
must retain copies of the affidavits of its salespersons for
its records and must make the affidavits available to the
Comptroller for examination upon request.
    (c) The licensee shall be responsible for the activities of
any person representing the licensee in selling or offering a
pre-need contract for sale.
    (d) Any person not selling on behalf of a licensee shall be
required to obtain his or her own license.
    (e) Any person engaged in pre-need sales, as defined
herein, prior to the effective date of this Act may continue
operations until the application for license under this Act is
denied; provided that such person shall make application for a
license within 60 days of the date that application forms are
made available by the Comptroller.
    (f) No license shall be transferable or assignable without
the express written consent of the Comptroller. A transfer of
more than 50% of the ownership of any business licensed
hereunder shall be deemed to be an attempted assignment of the
license originally issued to the licensee for which consent of
the Comptroller shall be required.
    (g) Every license issued hereunder shall be renewed every 5
years for a fee of $100. The renewal fee shall be deposited
into the Comptroller's Administrative Fund. The remain in force
until the same has been suspended, surrendered or revoked in
accordance with this Act, but the Comptroller, upon the request
of an interested person or on his own motion, may issue new
licenses to a licensee whose license or licenses have been
revoked, if no factor or condition then exists which would have
warranted the Comptroller in refusing originally the issuance
of such license.
(Source: P.A. 92-419, eff. 1-1-02.)
 
    (815 ILCS 390/15)  (from Ch. 21, par. 215)
    Sec. 15. (a) Whenever a seller receives anything of value
under a pre-need sales contract, the person receiving such
value shall deposit 50% of all proceeds received into one or
more trust funds maintained pursuant to this Section, except
that, in the case of proceeds received for the purchase of
outer burial containers, 85% of the proceeds shall be deposited
into one or more trust funds. Such deposits shall be made until
the amount deposited in trust equals 50% of the sales price of
the cemetery merchandise, cemetery services and undeveloped
spaces included in such contract, except that, in the case of
deposits for outer burial containers, deposits shall be made
until the amount deposited in trust equals 85% of the sales
price. In the event an installment contract is factored,
discounted or sold to a third party, the seller shall deposit
an amount equal to 50% of the sales price of the installment
contract, except that, for the portion of the contract
attributable to the sale of outer burial containers, the seller
shall deposit an amount equal to 85% of the sales price.
Proceeds required to be deposited in trust which are
attributable to cemetery merchandise and cemetery services
shall be held in a "Cemetery Merchandise Trust Fund". Proceeds
required to be deposited in trust which are attributable to the
sale of undeveloped interment, entombment or inurnment spaces
shall be held in a "Pre-construction Trust Fund". If
merchandise is delivered for storage in a bonded warehouse, as
authorized herein, and payment of transportation or other
charges totaling more than $20 will be required in order to
secure delivery to the site of ultimate use, upon such delivery
to the warehouse the seller shall deposit to the trust fund the
full amount of the actual or estimated transportation charge.
Transportation charges which have been prepaid by the seller
shall not be deposited to trust funds maintained pursuant to
this Section. As used in this Section, "all proceeds" means the
entire amount paid by a purchaser in connection with a pre-need
sales contract, including finance charges and Cemetery Care Act
contributions, but excluding sales taxes and credit life
insurance premiums.
    (b) The seller shall act as trustee of all amounts received
for cemetery merchandise, services, or undeveloped spaces
until those amounts have been deposited into the trust fund.
All trust deposits required by this Act shall be made within 30
days following the end of the month of receipt. The seller must
retain a corporate fiduciary as an independent trustee for any
amount of trust funds. Upon 30 days' prior written notice from
the seller to the Comptroller, the seller may change the
trustee of the trust fund. Failure to provide the Comptroller
with timely prior notice is an intentional violation of this
Act.
    (c) A trust established under this Act must be maintained
with a corporate fiduciary as defined in Section 1-5.05 of the
Corporate Fiduciary Act or with a foreign corporate fiduciary
recognized by Article IV of the Corporate Fiduciary Act.
    (d) Funds deposited in the trust account shall be
identified in the records of the seller by the name of the
purchaser. Nothing shall prevent the trustee from commingling
the deposits in any such trust fund for purposes of the
management thereof and the investment of funds therein as
provided in the "Common Trust Fund Act", approved June 24,
1949, as amended. In addition, multiple trust funds maintained
pursuant to this Act may be commingled or commingled with other
funeral or burial related trust funds, provided that all record
keeping requirements imposed by or pursuant to law are met.
    (e) In lieu of a pre-construction trust fund, a seller of
undeveloped interment, entombment or inurnment spaces may
obtain and file with the Comptroller a performance bond in an
amount at least equal to 50% of the sales price of the
undeveloped spaces or the estimated cost of completing
construction, whichever is greater. The bond shall be
conditioned on the satisfactory construction and completion of
the undeveloped spaces as required in Section 19 of this Act.
    Each bond obtained under this Section shall have as surety
thereon a corporate surety company incorporated under the laws
of the United States, or a State, the District of Columbia or a
territory or possession of the United States. Each such
corporate surety company must be authorized to provide
performance bonds as required by this Section, have paid-up
capital of at least $250,000 in cash or its equivalent and be
able to carry out its contracts. Each pre-need seller must
provide to the Comptroller, for each corporate surety company
such seller utilizes, a statement of assets and liabilities of
the corporate surety company sworn to by the president and
secretary of the corporation by January 1 of each year.
    The Comptroller shall prohibit pre-need sellers from doing
new business with a corporate surety company if the company is
insolvent or is in violation of this Section. In addition the
Comptroller may direct a pre-need seller to reinstate a
pre-construction trust fund upon the Comptroller's
determination that the corporate surety company no longer is
sufficient security.
    All performance bonds issued pursuant to this Section must
be irrevocable during the statutory term for completing
construction specified in Section 19 of this Act, unless
terminated sooner by the completion of construction.
    (f) Whenever any pre-need contract shall be entered into
and include 1) items of cemetery merchandise and cemetery
services, and 2) rights to interment, inurnment or entombment
in completed spaces without allocation of the gross sale price
among the items sold, the application of payments received
under the contract shall be allocated, first to the right to
interment, inurnment or entombment, second to items of cemetery
merchandise and cemetery services, unless some other
allocation is clearly provided in the contract.
    (g) Any person engaging in pre-need sales who enters into a
combination sale which involves the sale of items covered by a
trust or performance bond requirement and any item not covered
by any entrustment or bond requirement, shall be prohibited
from increasing the gross sales price of those items not
requiring entrustment with the purpose of allocating a lesser
gross sales price to items which require a trust deposit or a
performance bond.
(Source: P.A. 96-879, eff. 2-2-10.)
 
    (815 ILCS 390/20)  (from Ch. 21, par. 220)
    Sec. 20. Records.
    (a) Each licensee must keep accurate accounts, books and
records in this State at the principal place of business
identified in the licensee's license application or as
otherwise approved by the Comptroller in writing of all
transactions, copies of agreements, dates and amounts of
payments made or received, the names and addresses of the
contracting parties, the names and addresses of persons for
whose benefit funds are received, if known, and the names of
the trust depositories. Additionally, for a period not to
exceed 6 months after the performance of all terms in a
pre-need sales contract, the licensee shall maintain copies of
each pre-need contract at the licensee branch location where
the contract was entered or at some other location agreed to by
the Comptroller in writing.
    (b) Each licensee must maintain such records for a period
of 3 years after the licensee shall have fulfilled his or her
obligation under the pre-need contract or 3 years after any
stored merchandise shall have been provided to the purchaser or
beneficiary, whichever is later.
    (c) Each licensee shall submit reports to the Comptroller
annually, under oath, on forms furnished by the Comptroller.
The annual report shall contain, but shall not be limited to,
the following:
        (1) An accounting of the principal deposit and
    additions of principal during the fiscal year.
        (2) An accounting of any withdrawal of principal or
    earnings.
        (3) An accounting at the end of each fiscal year, of
    the total amount of principal and earnings held.
    (d) The annual report shall be filed by the licensee with
the Comptroller within 75 days after the end of the licensee's
fiscal year. An extension of up to 60 days may be granted by
the Comptroller, upon a showing of need by the licensee. Any
other reports shall be in the form furnished or specified by
the Comptroller. If a licensee fails to submit an annual report
to the Comptroller within the time specified in this Section,
the Comptroller shall impose upon the licensee a penalty of $5
per day for the first 15 days past due, $10 per day for 16
through 30 days past due, $15 per day for 31 through 45 days
past due, and $20 per day for the 46th day and every day
thereafter for each and every day the licensee remains
delinquent in submitting the annual report. The Comptroller may
abate all or part of the $5 daily penalty for good cause shown.
Each report shall be accompanied by a check or money order in
the amount of $10 payable to: Comptroller, State of Illinois.
    (e) On and after the effective date of this amendatory Act
of the 91st General Assembly, a licensee may report all
required information concerning the sale of outer burial
containers on the licensee's annual report required to be filed
under this Act and shall not be required to report that
information under the Illinois Funeral or Burial Funds Act, as
long as the information is reported under this Act.
(Source: P.A. 91-7, eff. 1-1-00; 92-419, eff. 1-1-02.)
 
    Section 99. Effective date. This Act takes effect upon
becoming law.

Effective Date: 8/26/2011