As Amended
SEC. 41-43-38. Operation as perpetual care cemetery; accounting and reporting requirements; audits; records.
(1) The provisions of this section shall apply to every cemetery which is required to establish and maintain a perpetual care trust fund as provided in section 41-43-37.
(2) Within thirty (30) days after the end of the calendar or its fiscal year, each cemetery shall file with the clerk of the chancery court having jurisdiction thereof an annual account, which account shall contain the following information:
(a) The name of the cemetery, the date of incorporation, if incorporated, and the location of the cemetery or cemeteries owned;
(b) The amounts of sales of cemetery lots, grave spaces, mausoleum crypts or columbarium niches for which payment has been made in full or deeds of conveyance or perpetual easements issued thereon during the preceding calendar or fiscal year;
(c) The amounts paid into the perpetual care fund, and the income earned therefrom during the preceding fiscal year;
(d) The number of acres embraced within each cemetery and held by the cemetery for cemetery purposes; and
(e) The names and addresses of the owners of the cemetery or the officers and directors of the corporation and any change of control which has occurred during the past fiscal or calendar year.
(3) The custodian or trustee of the perpetual care fund of each cemetery shall annually prepare and file with the owner of the cemetery a detailed accounting and report of such fund on or before March 31 of each year for the calendar year ending the preceding December 31 or within ninety (90) days after the end of the fiscal year of the trust agreement, which report shall include, among other things, properly itemized, the securities in which the monies in the fund are then invested. The accounting and report shall be at all times available to inspection and copy by any owner of a burial right in the cemetery, or the family, legal representative or next of kin of such owner, at the usual place for transacting the regular business of the cemetery. Within forty-five (45) days after the time by which the custodian or trustee's accounting and report is required to be filed with the cemetery owner, the cemetery owner shall file a copy of such accounting and report with the clerk of the chancery court.
(4) As a condition to the transfer of any perpetual care trust fund monies from one trustee or trust institution to another, the cemetery for which such fund is maintained shall, not less than thirty (30) days prior to the time when such transfer is to occur, file with the chancery clerk a written notice of intent to transfer accompanied with a letter of intent to receive such trust fund monies from the trustee or trust institution to which such trust fund monies are to be transferred. Such fund monies shall be transferred directly from the existing custodian or trustee to the receiving custodian or trustee.
(5) Prior to any sale or transfer of a perpetual care cemetery or a controlling interest therein, an independent audit of the perpetual care trust fund shall be performed at the expense of the seller and/or buyer or transferor and transferee and filed with the chancery clerk. Such audit shall be current within thirty (30) days of the proposed sale or transfer.
(6) Each chancery clerk shall maintain a properly indexed book in which there shall be kept, preserved and open for public inspection a copy of each record, report and notice required to be filed with the chancery clerk under the provisions of this section. For filing and indexing the records, reports and notices under this section, the chancery clerk shall be authorized to charge such fees as are provided in section 25-7-9 for the recording and indexing of deeds.
(7) The clerk of the chancery court having jurisdiction shall, upon the failure to timely receive any of the records, reports or notices provided for in this section, immediately give notice by registered letter to the cemetery owner or owners, or, if incorporated, its officers and directors, at its or their last-known address, that such records, reports or notices have not been received. Failure of such persons to file such records, reports or notices within fifteen (15) days after such registered letter is mailed shall, in the absence of clear justification or excuse, constitute a misdemeanor and each owner of such cemetery and, if incorporated, its officers and directors, shall be subject to the penalties provided for in section 41-43-53.
(8) Whenever it reasonably appears to the court upon complaint filed with the chancery court having jurisdiction thereof by any owner or purchaser, or the family, legal representative or next of kin of any such owner or purchaser, of any lot, plot, grave, crypt, niche or burial space within a perpetual care cemetery, that (a) such cemetery is insolvent or about to become insolvent; or (b) no perpetual care trust fund has been established for such cemetery or, if established, the trust fund does not contain such funds as are required to be contained therein, the court shall order a private audit and examination of any perpetual care trust fund of such cemetery and of all the books, records and papers employed in the transaction of such cemetery business.
In the event that such audit and examination shows that the cemetery is insolvent or is about to become insolvent, or that a sufficient trust fund is not established or being maintained for such cemetery, the court shall exercise such jurisdiction and make and issue such orders and decrees as may be necessary to correct and enforce compliance with the provisions of sections 41-43-31 to 41-43-53 and all such other orders and decrees as shall be just, equitable and in the public interest, including the appointment of receivers to continue or terminate the operation of such business.
(9) All the necessary expenses of any examination or audit performed or court proceedings conducted under the provisions of subsection (8) of this section shall be paid by the cemetery owner or owners or, if incorporated, its officers and directors, and in the event that a sale of any cemetery is ordered by the court, the proceeds of such sale shall first be applied to the costs expended under the provisions of subsection (8) of this section.
SOURCES: Laws, 1982, ch. 371, Sec. 2, eff from and after July 1, 1982.