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Subject 590-3-3 PERPETUAL CARE CEMETERIES

Rule 590-3-3-.01 Additional Documents to be Filed with Registration Application

In addition to the documents specified in O.C.G.A. Sec. 10-14-4(b)(1), each cemetery owner shall file:

(1) A certified copy of a plat of the land indicating the following:
(a) The plat has been recorded with the appropriate specified governmental agency and bearing the appropriate index number in accordance with Official Code of Georgia Annotated section 44-2-26, as now or hereafter amended;
(b) the name of the cemetery; and
(c) the total acreage of dedicated cemetery property.
(2) Satisfactory evidence that the cemetery owner holds an unencumbered fee simple title to the required minimum number of acres required by O.C.G.A. § 10-14-10. Undeveloped cemetery property in excess of the minimum number of acres required by the Act may be encumbered for the purpose of improving or developing such property to be used for cemetery purposes.

Rule 590-3-3-.02 Reports Subsequent to Effective Registration

Each cemetery owner required to register with the Secretary of State shall file an annual report in a form specified by the Secretary of State.

(1) The report shall be deemed to be timely filed if it is either:
(a) received in the office of the Division of Securities and Business Regulation during business hours not later than March 31 of each calendar year, or
(b) if it is mailed certified mail, return-receipt requested and post-marked not later than March 31 of each calendar year.
(2) The report must include all supporting documentation including, but not limited to, a calendar year end bank statement. In the event the trustee is a financial institution, the calendar year end bank statement shall be submitted to the Office of the Secretary of State by such institution. All other required documentation shall be filed by the cemetery owner.

Rule 590-3-3-.03 Evidence of Transfer of Burial Rights; Business, Corporate, and Financial Records

(1) Deed or Certificate. A deed or other certificate to a grave space or other burial right shall be issued by a cemetery whenever the space is used for the interment of human remains or whenever the space is fully paid for.
(2) Corporate and Financial Records. Each perpetual care cemetery required to register with the Secretary of State shall keep and maintain its business and financial records for the cemetery and its perpetual care trust fund as segregated records separate and apart from the records of any other cemetery, trust, or business, including any other cemetery or business of the cemetery owner, cemetery salespersons, or perpetual care trustee.
(3) Plat of Real Property. Each perpetual care cemetery required to register with the Secretary of State shall cause to be made a plat in accordance with Official Code of Georgia Annotated § 44-2-26, as now or hereafter amended. A copy of said plat shall be kept and made available for public inspection at the cemetery's principal place of business in Georgia that is open to the public.
(4) Sales Journal. Each perpetual care cemetery required to register with Secretary of State shall keep and maintain a sales journal at the cemetery's principal place of business. Said sales journal shall contain, at a minimum, the following items:
(a) A record of each individual specified sales contract, indicating the sales contract number;
(b) The date of execution of each specified sales contract;
(c) The name of the person who purchased the property pursuant to each specified sales contract;
(d) The total sales price of the property subject to each specified sales contract;
(e) The number of lots subject to each specified sales contract;
(f) The location of property which must include section, lot and space number; and
(g) The amount due to the perpetual care trust fund.
(5) Space Lot Journal. Each perpetual care cemetery required to register with the Secretary of State shall keep and maintain a space lot journal or equivalent records at the cemetery's principal place of business in Georgia. Said space lot journal shall contain at a minimum, the following items:
(a) A numerically identified record of each cemetery lot identified in a manner corresponding to the property plat and organized in a manner corresponding to any designated subsections of the cemetery;
(b) If a specified lot has been sold, the date of its sale;
(c) If a specified lot has been sold, the full name of the person who purchased the lot;
(d) If a specified lot has been sold, cross-reference to the cemetery's deed book;
(e) Indication that the lot has been used for interment, the identity of the person interred, and the date on which the person was interred; and
(f) If a specified lot has been sold, the sales contract number.
(6) Deed Book. Each perpetual care cemetery required to register with the Secretary of State shall keep and maintain one permanent deed book at the cemetery's principal place of business in Georgia. Said deed book shall contain, at a minimum, the following items:
(a) A consecutively numbered record of each individual deed or other certificate issued in one continuous numerical sequence for the entire cemetery;
(b) The date of issuance of each individual specified deed or certificate;
(c) The full name of the person to whom each specified deed or certificate was issued;
(d) The total sale price of the property subject to each specified deed or certificate;
(e) The amount due to the perpetual care trust fund;
(f) The number of lots subject to each specified deed or certificate;
(g) If the cemetery has designated subsections, the name of the subsection in which the property subject to each specified deed or certificate is located;
(h) Cross-reference to the cemetery's space lot journal and to the sales contract; and
(i) In the case of a transfer of ownership of a cemetery lot, the names of the transferor and transferee and the numbers of the old and the new deed or certificate.
(7) Copies of Deeds or Certificates. Each perpetual care cemetery required to register with the Secretary of State shall keep and maintain a copy (photostatic or otherwise) of every deed or certificate issued on or after August 1, 1989. Said copies shall be available for inspection upon request by the Secretary of State.

Rule 590-3-3-.04 Marking of Nonperpetual Care Sections

If a perpetual care cemetery required to register with the Secretary of State contains lots, sections, or parcels for which perpetual care is not promised and maintained, the nonperpetual care section shall be physically separate or distinguished from the perpetual care sections, and both nonperpetual care and perpetual care sections shall be clearly marked and designated. This requirement may be satisfied by the installation of an identifying sign, of a size not less than one-half (1/2) square foot, spaced not less than every one hundred (100) feet along the perimeter of each nonperpetual care section, identifying any nonperpetual care section as such. Any plat of the cemetery filed with the Secretary of State, and any map of the cemetery provided to any person, shall likewise identify any nonperpetual care portion of the cemetery. In the event a cemetery does not post such signs and depict such information on its plat with respect to any section or portion, such property may be considered to be a perpetual care cemetery portion.

Rule 590-3-3-.05 Perpetual Care Trust Fund

(1) Deposits to the perpetual care trust fund shall be whichever is the greatest of:
(a) the amount required by the Act;
(b) the amount required by the controlling trust agreement; or
(c) the amount represented to the purchaser as being the amount to be deposited.
(2) For the purposes of determining appropriate uses of interest and earnings from the perpetual care trust fund, in addition to other elements of care and maintenance specifically enumerated in the Act and these Rules, a cemetery may use such funds for restoration and maintenance of monuments that are in disrepair.
(3) Each cemetery owner that has sold more than 50 percent of available lots may withdraw 95 percent of the income from the perpetual care trust fund after certifying compliance with the requirements of this section by submitting written notice to the Secretary. The cemetery owner shall have a continuing duty to notify the Secretary of any additional land developed for burial purposes. If such further development results in less than 50 percent of available lots unsold, the income earned must be retained by the perpetual care trust fund until such time as more than 50 percent of the available lots are sold.
(4) Each cemetery owner shall establish a perpetual care trust fund separate and distinct from any previously existing perpetual care trust fund for the purpose of making required deposits for sales occurring after July 1, 2000. If allowed by the terms of any perpetual care trust fund existing as of such date, any cemetery owner may, upon notice to the Secretary of State, deposit into such new account the entire balance of any previously established account, which deposit shall be irrevocable and which funds shall then become subject to the provisions of the trust agreement for such new account and the provisions of the Act relative to such new account. If allowed by the terms of any perpetual care trust fund agreement existing as of such date, the cemetery may make additional deposits to such a trust fund on the condition that the entire corpus of the trust fund, any income earned by the trust fund, and any subsequent deposits to the trust fund are thereafter governed by the provisions of the Act.
(5) Pursuant to Section 10-14-6 of the Act, beginning July 1, 2003, and every three years thereafter, the Secretary of State shall adjust the $50.00 minimum deposit required to be made to the perpetual care trust fund based on the rate of change in the Consumer Price Index as reported by the Bureau of Labor Statistics of the United States Department of Labor. Using the Consumer Price Index, All Urban Customers, U.S. City Average, All Items, released in June of 2003 and every third year thereafter, the Secretary of State shall calculate the adjusted minimum deposit and inform all cemeteries registered under the Act by mailing a Notice of Deposit Adjustment.

Rule 590-3-3-.06 Trustee of Perpetual Care Trust Fund

(1) The following persons may act as the trustee of the perpetual care trust fund required by § 10-14-6 of the Act:
(a) A bank or financial institution incorporated pursuant to Official Code of Georgia Annotated § 7-1-390, et seq., and authorized to exercise and validly exercising the powers of a fiduciary pursuant to Article 2, Chapter 1 of Title 7 of the Official Code of Georgia Annotated, as now or hereafter amended;
(b) A building and loan or savings and loan association incorporated pursuant to Official Code of Georgia Annotated § 7-1-770, et seq., and authorized to exercise and validly exercising the powers of a fiduciary pursuant to Article 7, Chapter 1 of Title 7 of the Official Code of Georgia Annotated, as now or hereafter amended;
(c) A trust company incorporated pursuant to Official Code of Georgia Annotated § 7-1-390, et seq., and authorized to exercise and validly exercising the powers of a fiduciary pursuant to Article 2, Chapter 1 of Title 7 of the Official Code of Georgia Annotated, as now or hereafter amended;
(d) A national bank authorized to act as a fiduciary under the laws of the United States;
(e) A federally chartered savings and loan association authorized to act as a fiduciary under the laws of the United States; and
(f) Any other institution with trust powers authorized to be a depository for a perpetual care trust fund under the Act or which is approved by the Secretary of State or which meets standards set forth in these Rules.
(2) Any prospective trustees of a type not specifically described in the Act or these Rules may petition the Secretary of State for approval.
(3) Upon approval of the Secretary of State, a cemetery owner or an officer or director of a cemetery company or its affiliate may act as trustee of a perpetual care trust fund if the account documents require the signature of the Secretary of State or his or her authorized representative in order for any withdrawal to be made from said account and if the depository agreement is in a form satisfactory to the Secretary of State.
(4)
(a) No less than ten (10) days prior to any change or substitution of the trustee of a perpetual care trust fund, the cemetery or cemetery company required to establish and maintain a perpetual care trust fund pursuant to Official Code of Georgia Annotated § 10-14-6 shall file a notice with the Secretary of State that contains the following:
1. The cemetery name and registration number;
2. The cemetery location and mailing address, including city, state and zip code;
3. The cemetery phone number;
4. The name, telephone number and address, including city, state and zip code, of the new trustee of the perpetual care trust fund;
5. A copy of the perpetual care trust fund agreement executed by the registrant and the new trustee;
6. The name, address, location, and telephone number of the perpetual care trust fund depository or depositories along with the names of the perpetual care trust accounts and the account numbers;
7. A dated and notarized signature of the individual duly authorized to sign the notice filing, including the signatory's printed name and title. If the cemetery is incorporated, the president or authorized individual shall sign; and
8. If the person signing did not prepare the notice filing, the printed name, signature, and title of the person who prepared the notice filing is required.
(b) Within thirty (30) days after any change or substitution of the trustee of a perpetual care trust fund, the former trustee shall submit to the Office of the Secretary of State the following:
1. The yearly financial report required by Official Code of Georgia Annotated § 10-14-6(h), which shall be calculated based on the year-to-date with respect to the perpetual care trust fund; and
2. Written certification detailing the account balances as of the date of transfer to the new trustee and verification of the assets delivered to the new trustee.
(c) Within thirty (30) days after any change or substitution of the trustee of a perpetual care trust fund, the new trustee shall submit to the Secretary of State written certification detailing the account balances as of the date of receipt of the perpetual care trust funds and verification of the assets received by the new trustee.

Rule 590-3-3-.07 Depository of Perpetual Care Trust Fund

(1) The following persons may act as the depository of the perpetual care trust fund required by Sec. 10-14-6 of the Act:
(a) Those institutions specifically described in Sec. 10-14-6 of the Act;
(b) An insurance company licensed to do business in Georgia and which has an A.M. Best rating of B+ or better;
(c) Any other financial institution not specifically noted in this Rule and which petitions the Secretary of State for approval. The Secretary of State may approve such institution as a depository if it demonstrates to the Secretary of State its financial soundness and responsibility and complies with the other requirements of this Rule.
(2) No financial institution shall serve as a depository unless it either:
(a) maintains an office in this State at which the account is maintained and which subjects the institution to the jurisdiction of the courts of this State; or
(b) agrees, in a form acceptable to the Secretary of State, that jurisdiction and venue for any dispute related to the perpetual care trust fund shall lie in the Superior Court of the county in which the relevant cemetery is located or Fulton County.
(3) In making any investments and in acquiring and retaining those investments and managing the perpetual care trust fund, the trustee shall exercise the judgment and care, under the circumstances then prevailing, which persons of prudence, discretion, and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital.
(4) Funds in a perpetual care trust account into which deposits are made on account of sales occurring on or after July 1, 2000 shall be invested and reinvested according to Sec. 10-14-6(f) of the Act, which includes, but is not limited to, investing the funds in manner in which the funds are not subject to a risk of capital loss; in investments guaranteed by a governmental insurance entity of the type described in Sec. 10-14-6(a)(3) of the Act, or in a high-quality bond, note or certificate of deposit issued by any of the following:
(a) a municipal, state or federal governmental entity,
(b) a financial institution eligible to be a trustee or depository of a perpetual care trust account, or
(c) by any financial institution approved by the Secretary of State who agrees to abide by the investment laws of Code Sections 53-8-1 through 53-8-4 of the 'Pre-1998 Probate Code,' if applicable, or Code Section 53-8-1 and Code Section 53-12-287 of the 'Revised Probate Code of 1998'.

Rule 590-3-3-.08 Sales and Business Practices

(1) Discounting of Factoring of Accounts Receivable. If a cemetery discounts or factors the accounts receivable created by the sale of cemetery lots on a full recourse basis or signs a collateral agreement making the cemetery remain liable upon default of a cemetery lot contract, any sales contract involved is not deemed to be paid in full for a period not to exceed six (6) years from the execution date of the contract until the factor or purchaser of the accounts receivable is paid in full by the purchaser of the cemetery lot. If a cemetery discounts or factors said accounts receivable on a nonrecourse basis, any sales contracts involved is deemed to be paid in full at the time of discounting or factoring of the account.
(2) Repurchase and Subsequent Sale. If a cemetery, cemetery company, or cemetery salesperson repurchases or otherwise obtains a burial space from a previous purchaser and sells the lot again to a subsequent purchaser, a deposit to the perpetual care trust fund for the subsequent sale shall be made in accordance with section 10-14-6(b) of the Act.
(3) In-Kind Trade. If a cemetery, cemetery company or cemetery salesperson makes an in-kind trade of a lot, mausoleum crypt, or niche in one cemetery for any other lot, mausoleum crypt, or niche in any other cemetery, a deposit to the perpetual care trust fund for the lot so given shall be made in accordance with section 10-14-6(b) of the Act.
(4) Intra-cemetery Trades. If a cemetery lot, crypt, or niche is traded for another cemetery lot, crypt, or niche in the same cemetery, any amount actually deposited to the perpetual care trust fund for the lot, crypt, or niche so traded will be allowed as a credit for the deposit required to the perpetual care trust fund for the new purchase.

Rule 590-3-3-.09 Perpetual Care Trust Agreement

(1) Filing.
(a) Each cemetery owner shall file with the Secretary of State an executed copy of a perpetual care trust agreement with an application for registration.
(2) Review. Any perpetual care trust agreement may be subject to the review and approval of the Secretary of State to determine compliance with the Act and these Rules. In the event the Secretary of State determines, after review, that the agreement does not comply with the Act and applicable Rules, the perpetual care cemetery shall be notified in writing by the Secretary of State regarding any changes required to be made for compliance with the Act and the Rules.
(a) Any perpetual care trust agreement on file with the Secretary of State prior to July 1, 2000, may be reviewed by the Secretary of State and, if reviewed, the perpetual care cemetery shall be notified in writing of any changes required for compliance with the act and the rules and regulations promulgated thereunder.
(b) A perpetual care cemetery, after written notification by the Secretary of State, shall have a reasonable period of time, not to exceed thirty (30) days, in which to respond and act upon changes to the perpetual care trust agreement required by the Secretary of State.
(3) Amendments.
(a) Each proposed amendment or change to the perpetual care trust agreement proposed by the perpetual care cemetery shall be submitted to the Secretary of State.
(b) Each perpetual care cemetery shall be under a continuing duty to file with the Secretary of State any and all changes, amendments, or revisions of the perpetual care trust agreement.
(c) Any proposed amendment or change to the perpetual care trust agreement on file with the Secretary of State may be reviewed by the Secretary of State, and if reviewed, the perpetual care cemetery shall be notified in writing of any changes required for compliance with the Act and the rules and regulations promulgated thereunder. The perpetual care cemetery shall have thirty (30) days from the receipt of the written notice in which to respond and act upon changes to the perpetual care trust agreement required by the Secretary of State.
(4) Certification. Each Perpetual Care Trust Fund Agreement submitted to the Secretary of State must include a certification clause verifying that the agreement is in accordance with the Act and the Rules and Regulations.

Rule 590-3-3-.10 Charges for Removal and Relocation of Monuments

No cemetery owner may charge a fee for the removal, reinstallation or relocation of any monument unless the fee is included in the schedule of charges filed with the Registration Application or as an amendment thereto.

Rule 590-3-3-.11 Additional Exemptions from Registration

In addition to those exceptions expressly provided for by statute, pursuant to O.C.G.A. Sec. 10-14-4(e), a cemetery which meets the following criteria and which would otherwise be required to register under the Act shall be exempt from registration:

(1) The cemetery is owned and operated by a Georgia not-for-profit corporation, or a foreign not-for-profit corporation qualified to do business in Georgia;
(2) No officer, director or member of such corporation receives any compensation in connection with the ownership, operation or management of the cemetery property;
(3) No officer, director or member of such corporation, nor any immediate family member thereof, conducts any business on the property of such cemetery, or supplies any cemetery or funeral services or merchandise on such property, provided that such an individual may be paid a reasonable amount for property maintenance services actually performed by such person on the property;
(4) The cemetery is less than 25 acres in size; and
(5) No consideration is received by the cemetery or its owner for any cemetery or funeral services or merchandise other than for burial spaces, provided that owners of such burial spaces, their family members, friends and heirs, may contribute funds and in-kind goods and services to the corporation for the purpose of maintaining the cemetery property.

Rule 590-3-3-.12 Allocation of Funds

In the event any sale is made on an installment basis, the perpetual care trust fund shall receive the appropriate percentage of each installment payment first prior to any additional allocation of funds until the minimum amount required to be placed in the perpetual care trust fund, pursuant to the Act, has been paid in full.