Missouri Revised Statutes
Chapter 214
Cemeteries
←214.385
Section 214.387.1
214.389→
August 28, 2015
Burial merchandise or services, deferral of delivery, when--escrow arrangement--distribution of moneys--cancellation.
214.387. 1. With the exception of sales made pursuant to section
214.385, all sales of prearranged burial merchandise and services shall be
made pursuant to this section.
2. Upon written instructions from the purchaser of burial merchandise
or burial services set forth in a cemetery prearranged contract, a cemetery
may defer delivery of such burial merchandise or a warehouse receipt for
the same under section 214.385, or performance of services, to a date
designated by the purchaser, provided the cemetery operator, after
deducting sales and administrative costs associated with the sale, not to
exceed twenty percent of the purchase price, deposits the remaining portion
of the purchase price into an escrow or trust account as herein provided,
within sixty days following receipt of payment from the purchaser. Funds
so deposited pursuant to this section shall be maintained in such account
until delivery of the property or the performance of services is made or
the contract for the purchase of such property or services is cancelled,
and fees and costs associated with the maintenance of the trust or escrow
arrangement shall be charged to these funds. The account is subject to
inspection, examination or audit by the division. No withdrawals may be
made from the escrow or trust account established pursuant to this section
except as herein provided.
3. Each escrow arrangement must comply with the following:
(1) The escrow agent shall be located in Missouri, authorized to
exercise escrow powers, and shall maintain the escrow records so that they
may be accessed and produced for inspection within five business days of
the agent's receipt of a written request made by the office or its duly
authorized representative. A cemetery operator shall not serve as an
escrow agent for the cemetery operator's account nor shall the escrow agent
be employed by or under common ownership with the cemetery operator. The
cemetery operator shall maintain a current name and address for the escrow
agent with the office, and shall obtain written approval from the office
before making any change in the name or address of the escrow agent.
Notwithstanding any other provision of law, information regarding the
escrow agent shall be deemed an open record;
(2) The escrow account funds shall be maintained in depository
accounts at a Missouri financial institution that provides Federal Deposit
Insurance Corporation or comparable deposit insurance;
(3) The escrow arrangement shall be administered by the escrow agent
pursuant to an agreement approved by the office under the same filing and
approval procedure as that set forth for endowed care trust fund agreements
in section 214.330;
(4) The operator shall establish a separate depository account for
each cemetery prearranged contract administered pursuant to this
subsection;
(5) The division may promulgate by rule a form escrow agreement to be
used by a cemetery operator operating pursuant to this section.
4. Each trust must comply with the following:
(1) The trustee shall be a state or federally chartered financial
institution authorized to exercise trust powers in Missouri, provided that
a foreign financial institution must be approved by the office;
(2) The trust fund records, including all trust fund accounting
records, shall either be maintained in the state of Missouri or shall be
electronically stored so that the records may be made available within
fifteen business days of the trustee's receipt of a written request made by
the office or its duly authorized representative. The cemetery operator
shall maintain a current name and address of the trustee and the records
custodian and shall supply such information to the office or its
representative upon request;
(3) The principal of such funds shall be appropriately invested
pursuant to the prudent investor rule under chapter 469, provided that no
trust funds shall be invested in any term insurance product;
(4) Payments regarding two or more cemetery prearranged contracts may
be deposited into and commingled in the same trust, so long as adequate
records are made available to the trustee to account for cemetery
prearranged contracts on an individual basis with regard to deposits,
earnings, distributions, and any taxes;
(5) Trust instruments shall be subject to the same filing and
approval procedure as that set forth for endowed care trust fund agreements
under section 214.330;
(6) A trustee may commingle the funds from trusts of unrelated
cemetery operators for investment purposes if the trustee has adequate
accounting for the allocations, disbursements, payments, and income among
the participating trusts.
5. The income from escrow accounts, after payment of expenses
associated with the arrangement, shall be distributed to the cemetery
operator. All other distributions from trusts and escrow accounts shall be
made pursuant to forms approved by the office. For performance of a
cemetery prearranged contract, a certificate of performance form signed by
the cemetery operator shall be required for distribution. For cancellation
of a cemetery prearranged contract, a certificate of cancellation form
signed by the cemetery operator and the purchaser shall be required for
distribution.
6. A cemetery prearranged contract is subject to cancellation as
follows:
(1) At any time before the final disposition of the deceased, or
before the services or merchandise described in this section are provided,
the purchaser may cancel the contract without cause by delivering written
notice thereof to the operator. Within fifteen days after its receipt of
such notice, the cemetery operator shall pay to the purchaser a net amount
equal to eighty percent of all payments made under the contract. The
cemetery operator shall be entitled to keep one-half of the interest earned
on trust funds. Upon delivery of the purchaser's receipt for such payment
to the escrow agent or trustee, the escrow agent or trustee shall
distribute to the cemetery operator from the escrow account or trust an
amount equal to all deposits made into the escrow account or trust for the
contract;
(2) Notwithstanding the provisions of subdivision (1) of this
subsection, if a purchaser is eligible, becomes eligible, or desires to
become eligible, to receive public assistance under chapter 208 or any
other applicable state or federal law, the purchaser may irrevocably waive
and renounce his right to cancel the contract pursuant to the provisions of
subdivision (1) of this section, which waiver and renunciation shall be
made in writing and delivered to the cemetery operator;
(3) Notwithstanding the provisions of subdivision (1) of this
subsection, any purchaser, within thirty days of receipt of the executed
contract, may cancel the contract without cause by delivering written
notice thereof to the cemetery operator, and receive a full refund of all
payments made on the contract;
(4) Notwithstanding the provisions of subdivision (1) of this
subsection, once any purchase order is entered for the production or
manufacture of burial merchandise, per the purchaser's written request, the
purchaser's obligation to pay for said burial merchandise shall be
noncancellable;
(5) No funds subject to a purchaser's right of cancellation hereunder
shall be subject to the claims of the cemetery operator's creditors.
7. Burial merchandise sold through a contract with a cemetery or
cemetery operator which is entered into after the death of the individual
for whom the burial merchandise is intended shall not be subject to any
trusting or escrow requirement of this section.
8. This section shall apply to all agreements entered into after
August 28, 2010.
(L. 1994 S.B. 496 § 214.385 subsec. 2 subdivs. (b), (c), (d) merged
with S.B. 701, A.L. 2002 S.B. 892 , A.L. 2009 S.B. 296, A.L. 2010
H.B. 1692, et al. merged with H.B. 2226, et al. merged with S.B.
754)
2009
2002
1994
2009
214.387. 1. Upon written instructions from the purchaser of burial
merchandise or burial services set forth in a cemetery prearranged
contract, a cemetery may defer delivery of such burial merchandise or a
warehouse receipt for the same under section 214.385, or performance of
services, to a date designated by the purchaser, provided the cemetery
operator, after deducting sales and administrative costs not to exceed
twenty percent of the purchase price, deposits the remaining portion of the
purchase price into an escrow or trust account as herein provided, within
sixty days following receipt of payment from the purchaser. Funds so
deposited pursuant to this section shall be maintained in such account
until delivery of the property or the performance of services is made or
the contract for the purchase of such property or services is canceled.
The account is subject to inspection, examination or audit by the division.
No withdrawals may be made from the escrow or trust account established
pursuant to this section except as herein provided.
2. Upon written instructions from the purchaser of an interment,
entombment, or inurnment cemetery service, a cemetery may defer performance
of such service to a date designated by the purchaser, provided the
cemetery operator, within forty-five days of the date the agreement is paid
in full, deposits from its own funds an amount equal to eighty percent of
the published retail price into a trusteed account. Funds deposited in a
trusteed account pursuant to this section and section 214.385 shall be
maintained in such account until delivery of the service is made or the
agreement for the purchase of the service is canceled. No withdrawals may
be made from the trusteed account established pursuant to this section and
section 214.385 except as provided herein. Money in this account shall be
invested utilizing the prudent man theory and is subject to audit by the
division. Names and addresses of depositories of such money shall be
submitted with the annual report.
3. Upon the delivery of the interment*, entombment, or inurnment
cemetery service agreed upon by the cemetery or its agent, or the
cancellation of the agreement for the purchase of such service, the
cemetery operator may withdraw from the trusteed account an amount equal to
(i) the market value of the trusteed account based on the most recent
account statement issued to the cemetery operator, times (ii) the ratio the
service's deposit in the account bears to the aggregate deposit of all
services which are paid in full but not delivered. The trusteed account
may be inspected or audited by the division.
4. The provisions of this section shall apply to all agreements
entered into after August 28, 2002.
2002
214.387. 1. Upon written instructions from the purchaser of a
monument, marker or memorial, a cemetery may defer delivery of such
property to a date designated by the purchaser, provided the cemetery
operator, within forty-five days of the date the property is paid in full,
deposits from its own funds an amount equal to one hundred ten percent of
such property's wholesale cost into a segregated account. Funds deposited
in a segregated account pursuant to this section and section 214.385 shall
be maintained in such account until delivery of the property is made or the
contract for the purchase of such property is canceled. No withdrawals may
be made from the cemetery operator's segregated account established
pursuant to this section and section 214.385 except as provided herein.
The cemetery operator shall not commingle any other of its funds with the
deposits made to the segregated account. Money in this account shall be
invested utilizing the "prudent man theory" and is subject to audit by the
division. Names and addresses of depositories of such money shall be
submitted with the annual report.
2. If at the end of a calendar year the market value of the cemetery
operator's segregated account exceeds the then current wholesale cost of
all paid-in-full property which has not been delivered, the cemetery
operator may withdraw from the segregated account all realized income
earned by such account. If at the end of a calendar year the market value
of the cemetery operator's segregated account is less than the then current
wholesale cost of all paid-in-full property which has not been delivered,
the cemetery operator shall only withdraw the realized income in excess of
(i) the segregated account's market value at year end, plus (ii) all
realized income accrued to the segregated account minus (iii) the wholesale
cost of all paid-in-full property which has not been delivered.
3. Upon the delivery of a monument, marker or memorial sold by the
cemetery or its agent, or the cancellation of the contract for the purchase
of such property, the cemetery operator may withdraw from the segregated
account an amount equal to (i) the market value of the segregated account
based on the most recent account statement issued to the cemetery operator,
times (ii) the ratio the delivered property's deposit in the account bears
to the aggregate deposit of all property which is paid in full but not
delivered. The segregated account may be inspected or audited by the
division.
4. Upon written instructions from the purchaser of an interment,
entombment, or inurnment cemetery service, a cemetery may defer performance
of such service to a date designated by the purchaser, provided the
cemetery operator, within forty-five days of the date the agreement is paid
in full, deposits from its own funds an amount equal to forty percent of
the published retail price into a trusteed account. Funds deposited in a
trusteed account pursuant to this section and section 214.385 shall be
maintained in such account until delivery of the service is made or the
agreement for the purchase of the service is canceled. No withdrawals may
be made from the trusteed account established pursuant to this section and
section 214.385 except as provided herein. Money in this account shall be
invested utilizing the "prudent man theory" and is subject to audit by the
division. Names and addresses of depositories of such money shall be
submitted with the annual report.
5. Upon the delivery of the internment, entombment, or inurnment
cemetery service agreed upon by the cemetery or its agent, or the
cancellation of the agreement for the purchase of such service, the
cemetery operator may withdraw from the trusteed account an amount equal to
(i) the market value of the trusteed account based on the most recent
account statement issued to the cemetery operator, times (ii) the ratio the
service's deposit in the account bears to the aggregate deposit of all
services which are paid in full but not delivered. The trusteed account
may be inspected or audited by the division.
6. The provisions of this section shall apply to all agreements
entered into after August 28, 2002.
1994
214.387. 1. Upon written instructions from the purchaser
of a monument, marker or memorial, a cemetery may defer delivery
of such property to a date designated by the purchaser, provided
the cemetery operator, within forty-five days of the date the
property is paid in full, deposits from its own funds an amount
equal to one hundred ten percent of such property's wholesale
cost into a segregated account. Funds deposited in a segregated
account pursuant to this section and section 214.385 shall be
maintained in such account until delivery of the property is made
or the contract for the purchase of such property is canceled.
No withdrawals may be made from the cemetery operator's
segregated account established pursuant to this section and
section 214.385 except as provided herein. The cemetery operator
shall not commingle any other of its funds with the deposits made
to the segregated account. Money in this account shall be
invested utilizing the "prudent man theory" and is subject to
audit by the division. Names and addresses of depositories of
such money shall be submitted with the annual report.
2. If at the end of a calendar year the market value of the
cemetery operator's segregated account exceeds the then current
wholesale cost of all paid-in-full property which has not been
delivered, the cemetery operator may withdraw from the segregated
account all realized income earned by such account. If at the
end of a calendar year the market value of the cemetery
operator's segregated account is less than the then current
wholesale cost of all paid-in-full property which has not been
delivered, the cemetery operator shall only withdraw the realized
income in excess of (i) the segregated account's market value at
year end, plus (ii) all realized income accrued to the segregated
account minus (iii) the wholesale cost of all paid-in-full
property which has not been delivered.
3. Upon the delivery of a monument, marker or memorial sold
by the cemetery or its agent, or the cancellation of the contract
for the purchase of such property, the cemetery operator may
withdraw from the segregated account an amount equal to (i) the
market value of the segregated account based on the most recent
account statement issued to the cemetery operator, times (ii) the
ratio the delivered property's deposit in the account bears to
the aggregate deposit of all property which is paid in full but
not delivered. The segregated account may be inspected or
audited by the division.
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