Board of Cemeterians FAQ
Frequently Asked Questions for the Cemeteries Division
The Secretary of State does not regulate family, community, church, fraternal, or government-owned cemeteries (O.C.G.A. § 10-14-3(8). The local city or county governing authorities should be contacted to begin the process of deeding the property as a cemetery. Governance of these types of cemeteries is at the local level.
To establish a perpetual care cemetery, land must be dedicated at the city/county level of government as a cemetery. A perpetual care cemetery must be a minimum of 10 acres of contiguous land dedicated solely as a place of burial. Once the land is properly dedicated at the local level of government, then application may be made to the Secretary of State for registration as a perpetual care cemetery. The Application for Perpetual Care Cemetery details further requirements necessary to become registered.
Proper notice must be filed in county public land records. A perpetual care trust fund must be established with a depository approved by the Secretary of State with a minimum deposit of $10,000.00. The cemetery ownership must establish rules and maintain a printed copy at the cemetery office for review by the public; in addition, the cemetery must publish and maintain a price list of all merchandise, services, and burial plots offered for sale. The price list must be made available to the public upon request. Please refer to OCGA § 10-14-4 for legal requirements for establishing a perpetual care cemetery.
Ten (10) contiguous acres of dedicated property.
Under O.C.G.A. § 10-14-3(31), a “preneed dealer” is a “person, other than a salesperson registered under this chapter, who engages, either for all or part of his or her time, directly or indirectly, as agent, broker, or principal in the retail business of offering, selling, or otherwise dealing in funeral services or burial services or funeral or burial merchandise which is not attached to realty or delivered to the purchaser at the time of sale.” In your instance, whether you are required to register as a preneed dealer depends on whether you offer the sale of funeral merchandise at retail or whether you only offer the funeral merchandise at wholesale. Please note that you may be required to register with the Division under other rules or statutes.
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 O.C.G.A. § 10-14-6, which includes, but is not limited to, investing the funds in a 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 O.C.G.A. § 10-14-6(b)(3), or in a high-quality bond, 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 O.C.G.A. §§53-8-1 through 53-8-4 of the “Pre-1998 Probate Code,” if applicable, or O.C.G.A. §§ 53-8-1 and 53-12-297 of the “Revised Probate Code of 1998”.
Pursuant to O.C.G.A. §10-14-9(c)(1) of the Act, the Secretary of State must be notified when any cemetery or preneed dealer is sold or the ownership is otherwise transferred, or a controlling interest is sold or transferred. The following documents must be filed as an application for registration by the new owner with the Secretary of State prior to the new owner operating said cemetery or preneed dealer:
(a) An original application for registration executed by the prospective buyer, with all fees required by law, on a form prescribed by the Secretary of State;
(b) If necessary, a written request for a change of trustee, escrow agent, or account depository, in accordance with any controlling provision of a trust agreement or an escrow agreement; and
(c) Information sufficient to demonstrate that the prospective seller is not indebted to the preneed escrow account or to the perpetual care trust account. Such information may include but is not limited to:
i. A current financial report for the perpetual care trust fund and for the preneed escrow account prepared by a certified public accountant or a public accountant, reflecting the cemetery’s liability to each account and the current balances of each account; or a joint financial report for the perpetual care trust fund and the preneed escrow account, the accuracy of which is represented by both the previous cemetery owner and the new cemetery owner reflecting the total liability to each account and the current balance of each account;
ii. Verifications from the depositories showing the actual account balances for the perpetual care trust fund and the preneed escrow account as of the date of closing;
iii. A statement from the trustee of the perpetual care trust fund stating that the perpetual care trust account is not encumbered;
iv. A statement from the escrow agent of the preneed escrow account stating that the preneed escrow account is not encumbered; and
v. A copy of the proposed contract for sale of the cemetery between the prospective seller and the prospective buyer which may have the sales price deleted.
When any cemetery of a preneed dealer registered under O.C.G.A. § 10-14-5 is sold or the ownership is otherwise transferred, or a controlling interest is sold or transferred, the vendor or the transferor of such cemetery, preneed dealer, or interest shall remain liable for any funds that should have been deposited prior to the date of such sale or transfer in the perpetual care trust fund or the preneed escrow account, or both.
The following persons may act as the escrow agent of a preneed escrow account:
1. A bank incorporated pursuant to O.C.G.A. § 7-1-390, et seq., as now or hereafter amended, and located in this state 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;
2. A building and loan or savings and loan association incorporated pursuant to O.C.G.A. § 7-1-770, et seq., as now or hereafter amended, and located in this state 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
3. A trust company incorporated pursuant to O.C.G.A. § 7-1-390, et seq., as now or hereafter amended, and located in this state, 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;
4. A national bank with an office located in this state and authorized to act as a fiduciary under the laws of the United States; and
5. A federally chartered savings and loan association with an office located in this state and authorized to act as a fiduciary under the laws of the United States.
Any prospective escrow agent not specifically described in this Rule may petition the Secretary of State for approval.
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 Rule 590-3-3-.05 by submitting written notice to the Secretary of State. 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.