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WV Code § 35-5A-3 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5A. Perpetual Care of and Trust Funds for Cemeteries|§35-5A-3. Establishment of Permanent Endowment Care Funds

No person desiring to organize, develop and operate a perpetual care cemetery in West Virginia after July 1, 1973, shall offer to sell or sell any burial lot, burial right, entombment right or columbarium right in such cemetery, without first establishing a permanent endowment trust fund, segregated from all other assets, and placing therein a minimum of $10,000 in cash, or in bonds of the United States government or of the State of West Virginia.Whenever any such person has placed an additional $10,000 in the permanent endowment care fund out of gross sales proceeds or from any other source, such person after submitting satisfactory proof of this fact to its trustee may withdraw the original sum of $10,000 from the permanent endowment care fund.No person operating an established perpetual care cemetery in West Virginia on or before July 1, 1973, shall continue to operate such cemetery without creating a permanent endowment fund and making regular deposits to such fund as required in section four of this article and entrusting the administration of such fund as required in section five of this article.
WV Code § 35-5A-4 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5A. Perpetual Care of and Trust Funds for Cemeteries|§35-5A-4. Additional Funding of Permanent Endowment Care Funds

No person shall operate or continue to operate any perpetual care cemetery in the State of West Virginia after July 1, 1973, without placing into a permanent endowment care fund $10 or ten percent of the gross sales proceeds, whichever is greater, received from the sale of any burial right or lot and not less than five percent of the gross sales proceeds from the sale of any entombment right or columbarium right. This sum shall be placed in the permanent endowment care fund not later than thirty days following the month in which the entire gross sales proceeds are received.
WV Code § 35-5A-6 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5A. Perpetual Care of and Trust Funds for Cemeteries|§35-5A-6. Cemeteries Exempted

This article does not apply to any private or family cemetery wherein lots or spaces are not offered for public sale or to any cemetery which is owned and operated entirely and exclusively by churches, religious societies, established fraternal organizations, municipalities or other subdivisions of the state or a national cemetery.
WV Code § 35-5A-7 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5A. Perpetual Care of and Trust Funds for Cemeteries|§35-5A-7. Inconsistent Provisions

The provisions and requirements of this article shall take precedence over and shall supersede any other provisions of this code which may be inconsistent therewith.
WV Code § 35-5A-8 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5A. Perpetual Care of and Trust Funds for Cemeteries|§35-5A-8. Penalties for Violation

Any person and any officer, director, agent or employee of such person who violates or participates in the violation of this article shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than $1,000, or imprisoned in the county jail not more than one year, or both fined and imprisoned.
WV Code § 35-5B-2 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-2. Information Filing; Fees, Compliance Agent

On or after July 1, 1993, no person, partnership, firm or corporation may engage in the business of operating a cemetery company in this state without having first paid an annual registration fee established by the Tax Commissioner in an amount not to exceed $400, and filing with the Tax Commissioner certain information which shall include the name and addresses of all officers, owners and directors of the cemetery company and the name of the designated compliance agent. The cemetery company shall notify the Tax Commissioner of any changes in the information required to be filed within ninety days of the date on which the change occurs. A new filing shall also be required if there is a change in the ownership of the cemetery company or if there is a change in the name of the compliance agent designated by the cemetery company. The cemetery company shall pay an additional fee as established by the commissioner in connection with the reporting of such changes, not to exceed $100. There is hereby created in the State Treasury a special account to be known as the "cemetery company account" into which all fees collected under this article shall be deposited: Provided, That amounts collected which are found from time to time to exceed funds needed for the purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. Funds in this account shall be expended upon appropriation of the Legislature by the secretary of tax and revenue in connection with the administration of this article.
WV Code § 35-5B-3 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-3. Exemptions

The provisions of this article do not apply to:(1) Sales of property, goods and services subject to the provisions of article fourteen, chapter forty-seven of this code;(2) Sales of services by perpetual care cemeteries subject to the provisions of article five-a of this chapter;(3) Sales of property, goods and services by cemeteries owned and operated by a county, municipal corporation, by a church or by a nonstock corporation not operated for profit if the cemetery: (A) Does not compensate any officer or director except for reimbursement of reasonable expenses incurred in the performance of official duties; (B) does not sell or construct or directly or indirectly contract for the sale or construction of vaults or lawn or mausoleum crypts; and (C) uses proceeds from the sale of all graves and entombment rights for the sole purpose of defraying the direct expenses of maintaining the cemetery;(4) Sales of property, goods and services by community cemeteries not operated for profit if the cemetery: (A) Does not compensate any officer, owner or director except for reimbursement of reasonable expenses incurred in the performance of official duties; and (B) uses the proceeds from the sale of the graves for the sole purpose of defraying the direct expenses of maintaining its facilities; and(5) Sales of property, goods and services by family cemeteries wherein lots or spaces are not offered for public sale.
WV Code § 35-5B-4 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-4. Deposit in Preneed Trust Required; Who May Serve as Trustee

(a) Each cemetery company shall deposit into an interest bearing trust fund forty percent of the receipts from the sale of property, goods or services purchased pursuant to a preneed cemetery company contract including sales of opening and closing or interment services, when the delivery thereof will be delayed more than one hundred twenty days from the initial payment on said contract. However, should the proceeds from the sale be financed through a lending institution, it shall be considered a cash sale. Deposits are required to be made by the cemetery company within thirty days after the close of the month in which said receipts are paid to it.(b) If payment is made on an installment or deferred payment basis, the seller shall have the option of depositing into the trust fund forty percent of the amount of the principal initially, or alternatively, depositing forty percent of the principal of each payment within thirty days after the close of the month in which said receipts are paid to it.(c) (1) The trustee of the trust fund shall be appointed by the person owning, operating, or developing a cemetery company. If the trustee is other than a bank, savings and loan or other federally insured investment banking institution, the trustee shall be approved by the Tax Commissioner. A trustee that is not a bank, savings and loan or other federally insured investment banking institution shall apply to the Tax Commissioner for approval, and the Tax Commissioner shall approve the trustee when satisfied that:(A) The applicant employs and is directed by persons who are qualified by character, experience, and financial responsibility to care for and invest the funds of others; and(B) The applicant will perform its duties in a proper and legal manner and the trust funds and interest of the public generally will not be jeopardized.(2) If the trustee is other than a bank, savings and loan or other federally insured investment banking institution, the trustee shall furnish a fidelity bond with corporate surety thereon, payable to the trust established, in a sum equal to but not less than one hundred percent of the value of the principal of the trust estate at the beginning of each calendar year, which bond shall be deposited with the Tax Commissioner.(3) If the trustee is other than a bank, savings and loan or other federally insured investment banking institution, and if it appears that an officer, director or employee of the trustee is dishonest, incompetent or reckless in the management of a trust fund required by the provisions of this article, the Tax Commissioner may bring an action in the circuit courts of this state to remove the trustee and to impound the property and business of the trustee as may be reasonably necessary to protect the trust funds.
WV Code § 35-5B-5 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-5. Requirements for Preneed Cemetery Company Contracts

A preneed cemetery company contract shall:(1) Be written in clear understandable language and printed in easy-to-read type, size and style;(2) Include the name and address of the seller, the contract buyer and the person for whom the contract is bought if other than the contract buyer;(3) Contain a complete description of the property, goods or services bought, including an itemization of the retail price of the property, goods or services bought and, specifically, the retail price of the monument, marker, installation, foundation, opening and closing of the grave site, and any other charges. Failure to provide this information is a violation of subsection (f), section one hundred two, article six, chapter forty-six-a of this code, relating to unfair methods of competition and unfair or deceptive acts or practices;(4) Clearly disclose whether the price of the property, goods or services bought is guaranteed;(5) Provide that if the particular property, goods or services specified in the contract are unavailable at the time of delivery, the seller shall furnish property, goods or services similar in size and style and equal in quality of material and workmanship, and that the representative of the deceased has the right to reasonably choose the property, goods or services to be substituted; and(6) Be executed in duplicate and a signed copy given to the buyer.
WV Code § 35-5B-6 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-6. Identification of Funds

Any funds deposited in the trust account as required by section four of this article shall be identified in the records of the seller by the contract number and by the name of the buyer. The trustee may commingle the deposits in any preneed trust account for the purposes of the management thereof and the investment of funds therein.
WV Code § 35-5B-7 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-7. Corpus of Trust Account and Income to Remain in Preneed Trust Account; Exception

The corpus of the trust account shall remain intact until the property or goods are delivered or services performed as specified in the contract: Provided, That the net income from the preneed trust account may be used to pay any appropriate trustee and Auditor fees, commissions and costs. The net income from the preneed trust account, after payment of any appropriate trustee and Auditor fees, commissions and costs, shall remain in the account and be reinvested and compounded. Any trustee fees, commissions and costs in excess of income shall be paid by the cemetery company and not from the trust. However, the trustee shall, as of the close of the cemetery company's fiscal year, upon the written assurance to the trustee by a certified public accountant employed by the seller, return to the seller any income in the seller's account which, when added to the corpus of the trust account is in excess of the current cost requirements for all undelivered property, goods or services included in the seller's preneed cemetery company contracts including all outstanding preneed cemetery company contracts entered into prior to July 1, 1993. The seller's cost requirements shall be based upon wholesale cost and certified in its records by a sworn affidavit by the compliance agent and shall be determined by the seller as of the close of the cemetery company's fiscal year.
WV Code § 35-5B-8 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-8. Disbursement of Trust Funds Upon Performance of Contract; Mausoleum Construction Required

(a) Upon performance of the preneed cemetery company contract, the seller shall certify to the trustee by affidavit the amount of specific funds in the trust, identified with the contract performed, which the trustee shall pay to the seller. The seller may in its records itemize the property, goods or services and the consideration paid or to be paid therefor, to which the deposit requirements of this article apply. In such case the seller may, upon certification to the trustee of performance or delivery of such property, goods or services and of the amount of specific trust funds identified in its records with such items, request disbursement of that portion of the specific funds deposited pursuant to the contract, which the trustee shall pay to the seller.(b) If the preneed contract provides for two or more persons, the seller may, at its option, designate in its records the consideration paid for each individual in the preneed cemetery company contract. In such case, upon performance of that portion of the contract identified with a particular individual, the seller may request, by certification in the manner described above, the disbursement of trust funds applicable to that portion of the contract, which the trustee shall pay to the seller.(c) Any cemetery company that sells space in an unconstructed mausoleum must commence construction within seven years from the date of the first sale or when eighty percent of the spaces in the original mausoleum plan are sold, whichever occurs first.
WV Code § 35-5B-9 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-9. Seller Required to Keep Records

Each seller of a preneed cemetery company contract shall record and keep detailed accounts of all contracts and transactions regarding preneed cemetery company contracts and the records shall be subject to examination by the Tax Commissioner.
WV Code § 35-5B-10 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-10. Financial Report and Written Assurance Required

(a) The cemetery company shall report the following information to the Tax Commissioner within four months following the close of the cemetery company's fiscal year:(1) The total amount of principal in the preneed trust account;(2) The securities in which the preneed trust account is invested;(3) The income received from the trust and the source of that income during the preceding fiscal year;(4) An affidavit executed by the compliance agent that all provisions of this article applicable to the seller relating to preneed trust accounts have been complied with;(5) The total receipts required to be deposited in the preneed trust account;(6) All expenditures from the preneed trust account; and(7) If the trustee is other than a bank, savings and loan or other federally insured investment banking institution, proof, in a manner determined by the Tax Commissioner, that the fidelity bond required by the provisions of section four of this article has been secured and that it is in effect.(b) The cemetery company shall employ an independent certified public accountant who is to audit the account and provide assurance, which assurance shall be forwarded with the report required by subsection (a) of this section, that forty percent of the cash receipts from the sale of preneed property, goods or services which will not be delivered or performed within one hundred twenty days after receipt of the initial payment on account has been deposited in the account within thirty days after the close of the month in which the payment was received.
WV Code § 35-5B-11 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-11. Inclusion of Property, Goods and Services to Be Delivered Within One Hundred Twenty Days

Nothing in this article prohibits the sale within the contract of preneed property, goods or services to be delivered within one hundred twenty days after the receipt of the initial payment on account of such sale. Contracts may specify separately the total consideration paid or to be paid for preneed property, goods or services not to be delivered or provided within one hundred twenty days after receipt of initial payment. If a contract does not so specify, the seller shall deposit forty percent of the total consideration for the entire contract.
WV Code § 35-5B-12 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-12. Breach of Contract by Seller; Trust to Be Single Purpose Trust

(a) If, after a written request, the seller fails to perform its contractual duties, the purchaser, executor or administrator of the estate, or heirs, or assigns or duly authorized representative of the purchaser shall be entitled to maintain a proper legal or equitable action in any court of competent jurisdiction. No other purchaser need be made a party to or receive notice of any proceeding brought pursuant to this section relating to the performance of any other contract.(b) The trust shall be a single purpose trust, and the trust funds are not available to any creditors as assets of the seller, nor may the seller encumber the trust funds.
WV Code § 35-5B-13 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-13. Trustee May Rely on Certifications and Affidavits

The trustee may rely upon all certifications and affidavits which have been made pursuant to the provisions of this article and is not liable to any person for such reasonable reliance.
WV Code § 35-5B-14 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-14. Transfer of Trust Funds to Another Trustee

The seller may, upon notification in writing to the trustee, and upon such other terms and conditions as the agreement between them may specify, transfer its account funds to another trustee qualified under the provisions of this article. The trustee may, upon notification in writing to the seller, and upon such other terms and conditions as the agreement between them may specify, transfer the trust funds to another trustee qualified under the provisions of this article.
WV Code § 35-5B-15 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-15. Use of Trustee's Name in Advertisements

No person subject to the provisions of this article may use the name of the trustee in any advertisement or other public solicitation without written permission of the trustee.
WV Code § 35-5B-16 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-16. Cemetery Property Maintained by Cemetery Company

With respect to cemetery property maintained by a cemetery company, the cemetery company is responsible for the performance of:(1) The care and maintenance of the cemetery property it owns; and(2) The opening and closing of all graves, crypts or niches for human remains in any cemetery property it owns.
WV Code § 35-5B-17 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-17. Waiver of Article Void

Any provision of any contract which purports to waive any provision of this article is void.
WV Code § 35-5B-18 (2021)
2021 West Virginia Code|Chapter 35. Property of Religious, Educational and Charitable Organizations|Article 5B. Preneed Cemetery Company Property, Goods and Services; Related Contracts|§35-5B-18. Violation a Misdemeanor

Any person who violates any of the provisions of this article is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than one hundred nor more than $1,000 for each occurrence, or incarcerated in the county or regional jail for a term not to exceed one year, or both fined and incarcerated. Any person who violates any of the provisions of this article shall for a second offense be guilty of a felony and, upon conviction thereof, shall be fined not less than five hundred nor more than $3,000, or incarcerated in the penitentiary not less than one nor more than three years, or, in the discretion of the court, be incarcerated in the county jail for a term not to exceed one year.