Chapter 1721 | Cemetery Associations

Section 1721.01 | Acquisition, holding, and sale of exempt property by cemetery associations.

• Effective: September 29, 2017
• Latest Legislation: House Bill 49 - 132nd General Assembly

A company or association incorporated for cemetery purposes may appropriate or otherwise acquire, and may hold, not more than six hundred forty acres of land at any one location, which shall be exempt from execution and from being appropriated for any public purpose, except as otherwise provided in this section. A company or association of that nature may own land at multiple locations, and as many as six hundred forty acres owned at each location in accordance with this section are entitled to the exemptions specified in this section.

Lands of cemetery associations not containing graves or not containing graves that are in use as such on the date a written notice, as provided in this section, is served upon the officers of a cemetery, shall be subject to appropriation for highway or street purposes if an appropriation commences within four years of the serving of the notice. For such purposes said lands shall be subject to the exercise of the right of eminent domain by the municipal corporation in which such lands are located, by the board of county commissioners of the county in which such lands are located, or by the director of transportation under the same conditions and in the same manner as any private property; and, if any burial occurs within the area specifically designated in the written notice, the appropriating agency shall have the same powers with respect to such burial as are given to a board of township trustees by section 517.21 of the Revised Code and shall pay any costs resulting from the exercise of these powers. This section shall not be construed as authorizing an appropriating agency to exercise the powers specified by section 517.21 of the Revised Code in any part of a cemetery other than the area specifically designated in the written notice.

The appropriating agency shall serve upon the officers or agents having control of a cemetery a written notice that a specifically designated area of the cemetery may be needed for highway purposes. No such notice may be served more than once.

Such appropriation proceedings shall be made in the manner provided for in sections 163.01 to 163.22 of the Revised Code or, if by the director of transportation, as otherwise provided by law.

The board of trustees of such company or association, whenever in its opinion any portion of such lands is unsuitable for burial purposes, may sell and convey by deed in fee simple, in such manner, and upon such terms, as are provided by resolution of such board, any such portion of said lands, and apply the proceeds thereof to the general purposes of the company or association; but on such sale being made, the lands so sold shall be returned by the board to the auditor of the proper county and placed by that auditor upon the tax list and duplicate of real and public utility property for taxation.

Such company or association may also take, set aside, or hold any personal property received by it from any source for cemetery purposes; and if such company or association is incorporated not for profit, all personal property, including the income therefrom, owned or held by it, or for its use, for cemetery purposes and with no view to profit, shall be exempt from execution, from being appropriated for any public purpose, and from taxation, and no tax shall be assessed upon any personal property or the income therefrom expressly exempted under this section.

All exemptions provided for in this section shall be in addition to such other exemptions as a company or association incorporated for cemetery purposes, or its real or personal property, has under any other provisions of the Revised Code.

Section 1721.02 | Appropriation of land for cemetery purposes.

• Effective: January 1, 1966
• Latest Legislation: Senate Bill 94 - 106th General Assembly

If it is necessary for a cemetery company or association, for cemetery purposes, to acquire lands by appropriation, such proceedings shall be taken therefor as are provided for in sections 163.01 to 163.22, inclusive, of the Revised Code. No lands shall be appropriated until the probate court or court of common pleas is satisfied that suitable premises cannot be obtained by contract upon reasonable terms, and no lands shall be appropriated upon which there is a dwelling house, farm building, orchard, nursery, valuable mineral spring or other medicinal spring, or well actually yielding oil or salt water, unless such lands adjoin a cemetery already in use on the same or opposite side of a public highway.

Section 1721.03 | Proximity to dwellings.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Land shall not be appropriated, nor shall a cemetery be located, by an association incorporated for cemetery purposes or by a benevolent or religious society, within one hundred yards of a dwelling house, unless the owner of such dwelling house gives his consent, or unless the entire tract appropriated is a necessary addition to or enlargement of a cemetery already in use. The limit shall not be less than one hundred yards when it is sought to appropriate for cemetery purposes property adjoining a cemetery already in use, when such dwelling house was erected subsequent to the laying out and establishing of such cemetery. When a cemetery lies within or adjoins a municipal corporation the association or corporation owning such cemetery, without such consent, may appropriate property within one hundred feet, or the width of a street or alley, of any dwelling house.

The addition of any land across a street or public road is an enlargement of an existing cemetery for the purposes of this section.

Section 1721.04 | Associations prohibited from appropriation.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Sections 1721.02 and 1721.03 of the Revised Code do not apply to a corporation or cemetery association owning a cemetery smaller than four acres and situated within one mile of the corporate limits of a municipal corporation.

Section 1721.05 | Land for entrance.

• Effective: January 1, 1966
• Latest Legislation: Senate Bill 94 - 106th General Assembly

When in the judgment of the officers of a cemetery association it is necessary to secure additional land for the purpose of making an entrance to its ground, or to improve an entrance already made, the officers may apply to the board of county commissioners of the county in which the cemetery is located for the appointment of appraisers. Upon such application being made, such board shall proceed in accordance with sections 163.01 to 163.22, inclusive, of the Revised Code.

Section 1721.06 | Use of income - debt restrictions.

• Effective: October 20, 1999
• Latest Legislation: House Bill 18 - 123rd General Assembly

After paying for its land, a cemetery company or association shall apply all its receipts and income, whether from sale of lots, from donations, or otherwise, exclusively to laying out, preserving, protecting, and embellishing the cemetery and avenues within it or leading to it, to the erection of buildings necessary or appropriate for cemetery purposes, and to paying the necessary expenses of the cemetery company or association. No debts shall be incurred by the cemetery company or association except for purchasing, laying out, inclosing, and embellishing the ground, buildings necessary or appropriate for cemetery purposes, and avenues, for which purposes it may contract debts to be paid out of future receipts. For purposes of this section, buildings appropriate for cemetery purposes include, but are not limited to, buildings for crematory facilities, funeral homes, and other buildings intended to produce income for the cemetery company or association.

No part of the funds of a cemetery company or association, or of the proceeds of land sold by it, shall ever be divided among its stockholders or lot owners, and all its funds shall be used exclusively for the purposes of the company or association as specified in this section, or invested in a fund the income of which shall be so used and appropriated.

Section 1721.07 | Sale of lots.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A cemetery company or association may adopt rules for disposing of and conveying burial lots; but any person not already the owner of a lot in the cemetery may purchase any unsold lot in it, and have such lot conveyed to him by the company or association upon tender of the usual price asked by it for such lots.

Burial lots sold by a cemetery company or association shall be used for the sole purpose of interments, shall be subject to the rules prescribed by the company or association, and shall be exempt from taxation, execution, attachment, or any other claim, lien, or process if used exclusively for burial purposes and with no view to profit.

Section 1721.071 | Rules governing product of fetal death.

• Effective: September 12, 2008
• Latest Legislation: Senate Bill 175 - 127th General Assembly

(A) As used in this section and section 1721.072 of the Revised Code, "fetal death" has the same meaning as in section 3705.01 of the Revised Code.

(B) A cemetery company or association may prescribe rules for the burial, re-interment, or disinterment of the product of a fetal death.

(C) With regard to the product of a fetal death, on the request of the mother and in compliance with cemetery company or association rules, a cemetery company or association shall inter the product of the fetal death in accordance with one of the following:

(1) In a single grave within the cemetery that contains, or will contain, the remains of a parent, sibling, or grandparent;

(2) In another location of the cemetery, including a separate burial ground for infants, on a temporary or permanent basis.

Section 1721.072 | Reinterment or disinterment of product of fetal death.

• Effective: September 12, 2008
• Latest Legislation: Senate Bill 175 - 127th General Assembly

(A) Subject to division (B) of this section, re-interment or disinterment of the product of a fetal death buried in accordance with division (C)(2) of section 1721.071 of the Revised Code is not subject to section 517.24 of the Revised Code if one or both surviving parents provide written consent for the re-interment or disinterment to the cemetery and comply with any rules adopted under division (B) of section 1721.071 of the Revised Code.

(B) If two surviving parents are indicated on the cemetery's burial documents for the product of a fetal death buried in accordance with division (C)(2) of section 1721.071 of the Revised Code and only one has given consent under division (A) of this section, prior to re-interment or disinterment, the cemetery promptly shall give notice of the consent to the parent who did not give consent. The notice shall be sent by registered mail, return receipt requested, to the parent's last known address and contain a statement that the re-interment or disinterment will occur if the cemetery does not receive written objection within thirty days from the date the notice is sent. That parent may object to the re-interment or disinterment by giving notice to the cemetery by registered mail, return receipt requested, not later than thirty days after the cemetery's notice is sent. If the cemetery receives timely notice of the objection, the re-interment or disinterment is subject to section 517.24 of the Revised Code.

(C) A cemetery shall re-inter or disinter the product of a fetal death if both surviving parents provide written consent for the re-interment or disinterment or if one parent consents and the cemetery does not receive timely notice of an objection under division (B) of this section.

Section 1721.08 | Sale of land for public monument.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Any cemetery association organized under the laws of this state may sell and convey by deed in fee simple to a corporation organized not for profit under the laws of this state for the purpose of erecting and maintaining a public monument or memorial to any distinguished deceased person, such portion of the real estate of the association as is selected and agreed upon between it and such corporation, which is not used by the association, and which has not been disposed of by it for burial purposes. Such sale shall be at a price payable in a manner and on terms agreed upon between the association and such corporation. The land sold and conveyed shall thereafter be exclusively owned, held, and controlled, by the corporation purchasing it for the interment of such a deceased person, and for the erection and maintenance thereon of such monument or memorial, and for no other purpose.

Lands so sold and conveyed, so long as they are held and used for the purposes designated in this section, shall not be mortgaged, nor be subject to sale for debts.

Section 1721.09 | Plat and use of grounds.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Every cemetery company or association shall cause a plat of its grounds and of the lots laid out by it to be made and to be recorded or filed in the office of the county recorder of the county in which they are situated, numbering the lots by regular consecutive numbers. It may inclose, improve, and adorn the grounds and avenues, erect buildings for its use, prescribe rules for inclosing and adorning lots and for erecting monuments in the cemetery, and prohibit any use, division, improvement, or adornment of a lot. An annual exhibit shall be made of the affairs of the company or association.

Section 1721.10 | Exemptions of burial grounds.

• Effective: September 29, 2017
• Latest Legislation: House Bill 49 - 132nd General Assembly

Except as otherwise provided in this section, lands appropriated and set apart as burial grounds, either for public or for private use, and recorded or filed as such in the office of the county recorder of the county where they are situated, and any burial ground that has been used as such for fifteen years are exempt from sale on execution on a judgment, dower, and compulsory partition; but land appropriated and set apart as a private burial ground is not so exempt if it exceeds in value the sum of fifty dollars.

The lien for taxes against such burial grounds may be enforced in the same manner prescribed for abandoned lands under sections 323.65 to 323.79 of the Revised Code except that the burial ground may be transferred only to a municipal corporation, county, or township under division (D) of section 323.74 of the Revised Code. No burial ground that is otherwise exempt from sale or execution under this section shall be offered for sale at public auction.

Section 1721.11 | Acting as soldiers' monumental association.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A cemetery company or association may act either as a soldiers' monumental association or as a cemetery association, and, as it elects, may take charge of the management of cemetery grounds, or monuments especially erected in honor of soldiers or seamen who have died in the service of the state or of the United States or both.

Section 1721.12 | Acceptance and execution of certain trusts.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Every cemetery company or association may take, hold, possess, use, enjoy, and occupy such property of any kind as is given, granted, or devised to it for the purpose of building, repairing, maintaining, adorning, and beautifying fences, graves, vaults, mausoleums, monuments, walks, cemetery lots, drives, or avenues in its cemeteries, and may appropriate such property, or the proceeds thereof, to any of such purposes according to the terms of the trust for which it was given, granted, or devised.

Section 1721.13 | Incorporation when holding land within a village.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Any association of persons who are acting as a cemetery association, who have purchased and improved lands for cemetery purposes by subscriptions of lot holders and the sale of lots, and who are acting through a board of trustees chosen by members of the association may, when the lands thus occupied have been brought or held within the corporate limits of a village subsequently to the time of their purchase and improvement, become incorporated for cemetery purposes, as though the lands held by the association were outside such corporate limits.

Any association incorporated under this section as the successor of such an original association may, with the concurrence of the original association, take possession of, hold, and use, for cemetery purposes, all the property belonging to and held by the original association for such purposes.

All rights of lot owners in the cemetery grounds of the original association are valid without reference to the form of conveyance issued to them by the trustees of the original association, and shall be reserved and assured to such lot owners upon an incorporation under this section.

Section 1721.14 | Cemetery policemen.

• Effective: January 9, 1961
• Latest Legislation: House Bill 1 - 104th General Assembly

The trustees, directors, or other officers of a cemetery company or association, whether it is incorporated or unincorporated, and a board of township trustees having charge of township cemeteries, may appoint day and night watchmen for their grounds. All such watchmen, and all superintendents, gardeners, and agents of such company or association or of such board, who are stationed on the cemetery grounds may take and subscribe, before any judge of a county court or judge of a municipal court having jurisdiction in the township where the grounds are situated, an oath of office similar to the oath required by law of constables. Upon taking such oath, such watchmen, superintendents, gardeners, or agents shall have, within and adjacent to the cemetery grounds, all the powers of police officers.

Section 1721.15 | Sale of grounds by certain associations.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

The trustees of a cemetery association whose cemetery is within the limits of a municipal corporation which by ordinance has prohibited interments in such municipal corporations, whose cemetery is abandoned as a place for the burial of the dead, or which is involved in debt it is unable to pay, may apply, by petition to the court of common pleas of the county in which such cemetery is located, for the sale of the whole or a portion of its grounds, and said court may order such sale. The money derived from such sale shall be applied, under the direction of such court, to the costs of the removal from such grounds and reinterment elsewhere of the remains of the dead and to the payment of any debts of such association. Any surplus of such proceeds over such costs and debts must be invested upon interest, and the income therefrom applied to keeping in repair any unsold portion of the cemetery; if the entire premises are sold, any such surplus shall be divided pro rata among the owners of lots therein. The court shall set a time for the removal of the dead, after the confirmation of such sale.

Notice of the filing of such petition shall be given by publication for four consecutive weeks in some newspaper of general circulation in the county where it is filed, setting forth the object and prayer of the petition and that any person claiming an interest in the subject matter of such petition may appear and file an answer. On final hearing of the case, the court shall make such order or decree as will best secure the rights of the persons having an interest in such cemetery.

Section 1721.16 | Sinking fund.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

A cemetery association may create a sinking fund, either out of surplus money on hand, or out of money which has been given to the association by will, deed, or otherwise.

The association may invest money appropriated to such sinking fund in bonds of the United States, of the state of Ohio, or of a city therein, or may loan such money upon first mortgage of real estate in this state worth double the loan or upon collateral consisting of any such securities which are of equal face value with the loan. It shall not loan such money to a member of the cemetery board.

All moneys thus appropriated to a sinking fund and interest earned thereon shall be held exclusively for the enlargement, improvement, repair, or adornment of cemetery grounds, or for constructing or keeping in repair buildings, monuments, or other structures which the association deems necessary or appropriate for cemetery grounds, and shall not be appropriated or used for any other purpose.

Section 1721.17 | Transfer from one association to another.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

When, in the judgment of the trustees of any association of persons who are acting as a cemetery association, whether incorporated or unincorporated, and have purchased and improved land for cemetery purposes, the welfare of all concerned in the lands purchased and improved would be subserved by transferring such lands and improvements and other assets of such association to another association incorporated under the laws of this state for cemetery purposes, said trustees shall call a meeting of the association by giving notice of such meeting for two consecutive weeks in a newspaper of general circulation in the county in which said cemetery is located, specifying the place, time, and object of such meeting. A majority of the members of such association shall constitute a quorum. If by a majority vote of the members of such association the trustees are authorized to convey and transfer such lands and improvements and other assets to a corporation so organized for cemetery purposes and electing to accept such transfer, said trustees may execute a deed of conveyance and transfer of said lands, improvements, and other assets to said corporation. If the members of such association are its lot owners, and notice of such meeting has been given as provided by this section, not less than fifteen members shall constitute a quorum, and the conveyance and transfer of the lands, improvements, and other assets may be authorized by the vote of two thirds of the members present at the meeting.

After such transfer the corporation to which it was made shall carry out the objects for which the original association was formed and shall apply any moneys received by it from said original association in laying out, preserving, protecting, and embellishing said cemetery.

The rights of lot owners in the cemetery ground of the original association are not affected by this section or by any action taken under it.

Section 1721.18 | Crematory associations and morgues.

• Effective: October 1, 1953
• Latest Legislation: House Bill 1 - 100th General Assembly

Any company or association incorporated for the erection and maintenance of a crematory may exercise all the rights and powers conferred by sections 1721.01 to 1721.18, inclusive, of the Revised Code, subject to the conditions provided in such sections. No building shall be erected for such a purpose within two hundred yards of a dwelling house unless the owner of the dwelling house gives his consent. No person, company, association, or firm shall establish a morgue on a street upon which there are dwelling houses unless the owners or occupants of all dwelling houses within two hundred yards of the proposed morgue give their written consent thereto. This section does not apply to a crematory built, or a morgue established, as of April 3, 1900.

Section 1721.19 | Violation of bylaw, rule or regulation - detention or arrest.

• Effective: March 23, 2000
• Latest Legislation: Senate Bill 107 - 123rd General Assembly

(A) No person shall violate a bylaw, rule, or regulation adopted by the trustees, directors, or other officers of a cemetery company or association, or by a board of township trustees having charge of township cemeteries, with reference to the protection, good order, and preservation of cemeteries, and the trees, shrubbery, structures, and adornments therein.

(B)(1) A watchperson, superintendent, gardener, or agent of a cemetery company or association who has probable cause to believe that a person has violated division (A) of this section may detain the person in a reasonable manner and for a reasonable length of time within the property of the cemetery company or association for the purpose of recovering any property involved in the violation, causing an arrest to be made by a peace officer, or obtaining a warrant of arrest.

(2) A watchperson, superintendent, gardener, or agent acting under division (B)(1) of this section shall not search the person detained, search or seize any property belonging to the person detained without the person's consent, or use undue restraint upon the person detained.

(3) Any peace officer, as defined in section 2935.01 of the Revised Code, may arrest without a warrant any person who the officer has probable cause to believe has committed any act in violation of division (A) of this section that also is a violation of law and shall make the arrest within a reasonable time after the commission of the act in violation of division (A) of this section.

Section 1721.20 | Charge for delivery or installation of burial vault.

• Effective: October 29, 1953
• Latest Legislation: Senate Bill 269 - 100th General Assembly

No person, partnership, association, or corporation or officers, agents, or employees thereof, shall directly or indirectly make or collect any charge pertaining to the delivery or installation of a burial receptacle in a cemetery for human remains, except when such charge is for service actually performed, or expense actually incurred in aid of said installation.

Charges under this exception shall be equal for similar services in the same cemetery.

Section 1721.21 | Establishment of endowment care trust.

• Effective: August 17, 2021
• Latest Legislation: House Bill 7 - 134th General Assembly

(A) As used in this section:

(1) "Person" means any corporation, company, partnership, individual, or other entity owning or operating a cemetery for the disposition of human remains.

(2) "Cemetery" means any one or a combination of more than one of the following:

(a) A burial ground for earth interments;

(b) A mausoleum for crypt entombments;

(c) A columbarium for the deposit of cremated remains;

(d) A scattering ground for the spreading of cremated remains.

(3) "Interment" means the disposition of human remains by earth burial, entombment, or inurnment.

(4) "Burial right" means the right of earth interment.

(5) "Entombment right" means the right of entombment in a mausoleum.

(6) "Columbarium right" means the right of inurnment in a columbarium for cremated remains.

(7) "Human remains" means any part of the body of a deceased human being, in any stage of decomposition or state of preservation, or the remaining bone fragments from the body of a deceased human being that has been reduced by cremation or alternative disposition.

(B) No person shall operate or continue to operate any cemetery in this state unless an endowment care trust is established and maintained as required by this section.

(C) Any person desiring to operate any cemetery that is organized or developed after July 1, 1970, before offering to sell or selling any burial lot, burial right, entombment right, or columbarium right in that cemetery, shall first establish an endowment care trust, segregated from other assets, and place in that fund a minimum of fifty thousand dollars in cash or in bonds of the United States, this state, or any county or municipal corporation of this state.

Whenever any person described in this division has placed another fifty thousand dollars in the endowment care trust out of gross sales proceeds, in addition to the deposit required by this division, that person, after submitting proof of this fact to the trustees of the endowment care trust, may be paid a distribution in the sum of fifty thousand dollars from the endowment care trust.

(D) Any person desiring to operate or to continue to operate any cemetery after July 1, 1970, shall place into the endowment care trust as required by this section not less than ten per cent of the gross sales proceeds received from the sale of any burial lot, burial right, entombment right, or columbarium right. This percentage shall be placed in the endowment care trust no later than thirty days following the month in which the entire gross sales are received.

(E) The trustees of the endowment care trust shall consist of at least three individuals who have been residents of the county in which the cemetery is located for at least one year, or a trust company licensed under Chapter 1111. of the Revised Code or a national bank or federal savings association that has securities pledged in accordance with section 1111.04 of the Revised Code. If the trustees are not a financial institution or trust company, the trustees shall be bonded by a fidelity bond, or insured under an insurance policy less any deductible, in an aggregate amount of not less than one hundred per cent of the funds held by the trustees. The trustees or their agent shall, on a continuous basis, keep exact records as to the amount of funds under any joint account or trust instrument being held for the individual beneficiaries showing the amount paid, the amount deposited and invested, and accruals and income.

The funds of the endowment care trust shall be held and invested in the manner in which trust funds are permitted to be held and invested pursuant to sections 2109.37 and 2109.371 of the Revised Code or, if provided for in the instrument creating the trust, pursuant to the Ohio Uniform Prudent Investor Act.

(F) Any person offering to sell or selling any burial lot, burial right, entombment right, or columbarium right shall give to the purchaser of the lot or right, at the time of sale, a written agreement that identifies and unconditionally guarantees to the purchaser the specific location of the lot or the specific location to which the right applies.

(G) No person shall open or close any grave, crypt, or niche for the interment of human remains in a cemetery without the permission of the cemetery association or other entity having control and management of the cemetery.

(H) Except as provided in division (G) of this section, this section does not apply to a family cemetery as defined in section 4767.02 of the Revised Code, to any cemetery that is owned and operated entirely and exclusively by churches, religious societies, established fraternal organizations, municipal corporations, or other political subdivisions of the state, or to a national cemetery.

(I) The distribution from the endowment care trust shall be used only to pay for both of the following:

(1) The cost and expenses incurred to establish, manage, invest, and administer the records and the trust;

(2) The maintenance, supervision, improvement, and preservation of the grounds, lots, buildings, equipment, statuary, and other real and personal property of the cemetery.

(J)(1) Annual reports of all the assets and investments of the endowment care trust shall be prepared and maintained, and shall be available for inspection at reasonable times by any owner of interment rights in the cemetery.

(2) Every cemetery required to establish and maintain an endowment care trust shall ensure each of the following:

(a) That the cemetery has deposited, at the time specified in division (D) of this section, the amounts required by that division in the cemetery's endowment care trust;

(b) That the cemetery used the amounts withdrawn only for the purposes specified in division (I) of this section;

(c) Subject to division (K)(5) of this section, that all principal and capital gains, less any payment of taxes associated with such gains, have remained in the endowment care trust;

(d) That the endowment care trust has not been used to collateralize or guarantee loans and has not otherwise been subjected to any consensual lien;

(e) That the endowment care trust is invested in compliance with the investing standards set forth in sections 2109.37 and 2109.371 of the Revised Code, or, if provided for in the instrument creating the trust, the Ohio Uniform Prudent Investor Act.

(3) Every cemetery required to establish and maintain an endowment care trust shall do both of the following:

(a) File an affidavit annually with the division of real estate of the department of commerce, in a form prescribed by the division, certifying under oath the cemetery satisfied division (J)(2) of this section;

(b) Notify the division of real estate of the department of commerce, in a form prescribed by the division, of the percentage of the unitrust distribution from the endowment care trust, as described in divisions (K)(2)(a)(ii) and (b) of this section.

(K)(1) Every cemetery shall choose the distribution of either of the following from the endowment care trust:

(a) All net ordinary income, which includes collected dividends, interest, and other income earned by the trust, reduced by any expenses, including, but not limited to, taxes on income, fees, commissions, and costs;

(b) A unitrust disbursement not exceeding five per cent of the fair market value of the endowment care fund. "Fair market value," for the purpose of division (K)(1)(b) of this section, means the average of the net fair market value of the assets of the endowment care trust as of the last trading day for each of the three preceding fiscal year ends.

(2)(a) A cemetery that selects the unitrust disbursement distribution method, as provided in division (K)(1)(b) of this section, shall do both of the following:

(i) Deliver to the trustees of the endowment care trust written instructions, including the disbursement percentage selected, not later than sixty days prior to the beginning of a calendar year;

(ii) Deliver to the division of real estate of the department of commerce notification that the cemetery selected the unitrust disbursement method and the percentage selected, in compliance with division (J)(3)(b) of this section.

(b) The distribution method and, if a unitrust disbursement, the disbursement percentage selected shall remain in effect unless the cemetery notifies the trustees and the division of real estate of the department of commerce of its desire to effect a change. The trustees shall ensure that an investment policy is in place whose goals and objectives are supportive of the growth of the endowment care trust.

(3) Distributions from the endowment care trust shall be made on a monthly, quarterly, semiannual, or annual basis, as agreed upon by the cemetery and the trustees. If the trustees do not receive written instructions from the cemetery informing the trustees of the method of calculation and distribution chosen, the trustees shall calculate and distribute the net income, as earned, on a monthly basis.

(4) In order to withdraw a unitrust disbursement, the fair market value of the endowment care trust after the disbursement shall be greater than eighty per cent of the aggregate fair market value of the endowment care trust as of the end of the immediately preceding calendar year. Should this not be the case, disbursement shall be limited for that year to net ordinary income.

(5) The trustees shall pay reasonable operating expenses and taxes of the endowment care trust itself. If the operating expenses and taxes paid are greater than two and one-half per cent of the fair market value for the preceding calendar year end and the cemetery has selected a unitrust disbursement, the trustees shall reduce the unitrust disbursement by the amount exceeding two and one-half per cent.

Last updated May 20, 2021 at 2:06 PM

Section 1721.211 | Preneed cemetery merchandise and services contract.

• Effective: October 29, 2018
• Latest Legislation: House Bill 168 - 132nd General Assembly

(A) As used in this section, "preneed cemetery merchandise and services contract" means a written agreement, contract, or series of contracts to sell or otherwise provide an outer burial container, monument, marker, urn, other type of merchandise customarily sold by cemeteries, or opening and closing services to be used or provided in connection with the final disposition of a dead human body, where payment for the container, monument, marker, urn, other type of merchandise customarily sold by cemeteries, or opening and closing services is made either outright or on an installment basis, prior to the death of the person so purchasing or for whom so purchased. "Preneed cemetery merchandise and services contract" does not include any preneed funeral contract or any agreement, contract, or series of contracts pertaining to the sale of any burial lot, burial or interment right, entombment right, or columbarium right with respect to which an endowment care trust is established or is exempt from establishment pursuant to section 1721.21 of the Revised Code.

(B) Subject to the limitations and restrictions contained in Chapters 1101. to 1127. of the Revised Code, a trust company licensed under Chapter 1111. of the Revised Code or a national bank or federal savings association that pledges securities in accordance with section 1111.04 of the Revised Code or the individuals described in division (C)(2) of this section have the power as trustee to receive moneys under a preneed cemetery merchandise and services contract and to hold and invest such moneys in accordance with sections 2109.37 and 2109.371 of the Revised Code or, if provided for in the instrument creating the trust, in accordance with the Ohio Uniform Prudent Investor Act.

(C)(1) The greater of one hundred ten per cent of the seller's actual cost or thirty per cent of the seller's retail price of the merchandise and seventy per cent of the seller's retail price of the services to be provided under a preneed cemetery merchandise and services contract shall remain intact as a fund and held in a preneed cemetery merchandise and services trust until the death of the person for whose benefit the contract is made or the merchandise is delivered as set forth in division (K) of this section. However, any moneys held pursuant to this section shall be released upon demand of the person for whose benefit the contract was made or upon the demand of the seller for its share of the moneys held and earned interest if the contract has been canceled as set forth in division (G) of this section.

(2) The trustee of the preneed cemetery merchandise and services trust shall be a trust company licensed under Chapter 1111. of the Revised Code or a national bank or federal savings association that pledges securities in accordance with section 1111.04 of the Revised Code or at least three individuals who have been residents of the county in which the seller is located for at least one year, each of whom shall be bonded by a fidelity bond, or insured under an insurance policy less any deductible, in an amount that is at least equal to the amount deposited in the trust of which those persons serve as trustee. Amounts in the trust shall be held and invested in the manner in which trust funds are permitted to be held and invested pursuant to sections 2109.37 and 2109.371 of the Revised Code or, if provided for in the instrument creating the trust, in accordance with the Ohio Uniform Prudent Investor Act.

(3) Every preneed cemetery and merchandise contract entered into on or after October 12, 2006, shall include a provision in substantially the following form:

NOTICE: Under Ohio law, the person holding the right of disposition of the remains of the beneficiary of this contract pursuant to section 2108.70 or 2108.81 of the Revised Code will have the right to purchase cemetery merchandise and services inconsistent with the merchandise and services set forth in this contract. However, the beneficiary is encouraged to state his or her preferences as to the manner of final disposition in a declaration of the right of disposition pursuant to section 2108.72 of the Revised Code, including that the arrangements set forth in this contract shall be followed.

(D) Within thirty days after the last business day of the month in which the seller of cemetery merchandise or services receives final contractual payment under a preneed cemetery merchandise and services contract, the seller shall deliver the greater of one hundred ten per cent of the seller's actual cost or thirty per cent of the seller's retail price of the merchandise and seventy per cent of the seller's current retail price of the services as of the date of the contract to a trustee or to trustees as described in division (C)(2) of this section, and the moneys and accruals or income on the moneys shall be held in a fund in a preneed cemetery merchandise and services trust and designated for the person for whose benefit the fund was established as a preneed cemetery merchandise and services contract fund.

(E) The moneys received from more than one preneed cemetery merchandise and services contract may, at the option of the persons for whose benefit the contracts are made, be placed in a common or pooled trust fund in this state under a single trust instrument. If three individuals are designated as the trustees as provided in division (C)(2) of this section, they shall be bonded by a fidelity bond, or insured under an insurance policy less any deductible, in an aggregate amount of not less than one hundred per cent of the funds held by them as trustees. The trustees or their agent shall, on a continuous basis, keep exact records as to the amount of funds under a single trust instrument being held for the individual beneficiaries showing the amount paid, the amount deposited and invested, and accruals and income.

(F)(1) The seller of merchandise or services under a preneed cemetery merchandise and services contract shall ensure each of the following:

(a) That, within the time specified in division (D) of this section, the amounts required by that division were deposited in an appropriate fund in a preneed cemetery merchandise and services trust;

(b) That the p reneed cemetery merchandise and services trust has not been used to collateralize or guarantee loans and has not otherwise been subjected to any consensual lien;

(c) That the p reneed cemetery merchandise and services trust is invested in compliance with the investing standards set forth in sections 2109.37 and 2109.371 of the Revised Code or, if provided for in the instrument creating the trust, in accordance with the Ohio Uniform Prudent Investor Act;

(d) That no moneys have been removed from the p reneed cemetery merchandise and services trust, except as provided for in this section.

(2) Except as provided in division (F)(3) of this section, the seller of merchandise or services under a preneed cemetery merchandise and services contract shall annually submit to the division of real estate of the department of commerce an affidavit in a form prescribed by the division, certifying under oath the seller satisfied division (F)(1) of this section.

(3) A licensed funeral director who sells preneed funeral contracts and who also sells merchandise or services under a preneed cemetery merchandise and services contract shall be deemed to have met the requirement in division (F) (2) of this section by submitting the annual preneed cemetery merchandise and services contract affidavit to the board of embalmers and funeral directors along with or as part of the annual preneed funeral contract report required under divisions (I) and (J) of section 4717.31 of the Revised Code.

(G) This division is subject to division (I) of this section.

Any person upon initially entering into a preneed cemetery merchandise and services contract may, within seven days, cancel the contract and request and receive from the seller one hundred per cent of all payments made under the contract. After the expiration of the above period, any person who has entered into a preneed cemetery merchandise and services contract may, on not less than fifteen days' notice, cancel the contract and request and receive from the seller sixty per cent of the payments made under the contract which have been paid up to the time of cancellation; except that, if a preneed cemetery merchandise and services contract stipulates a firm or fixed or guaranteed price for the merchandise or services for future use at a time determined by the death of the person on behalf of whom payments are made, the person who has entered into the contract may, if the merchandise has not been delivered or the services have not been performed as set forth in division (K) or (L) of this section, on not less than fifteen days' notice, cancel the contract and receive from the seller sixty per cent of the principal paid pursuant to the contract and not less than eighty per cent of any interest paid, up to the time of cancellation, and not less than eighty per cent of any accrual or income earned while the moneys have been held pursuant to divisions (C) and (D) of this section, up to the time of cancellation. Upon cancellation, after the moneys have been distributed to the beneficiary pursuant to this division, all remaining moneys being held pursuant to divisions (C) and (D) of this section shall be paid to the seller. If more than one person enters into the contract, all of those persons must request cancellation for it to be effective under this division. In such a case, the seller shall refund to each person only those moneys that each person has paid under the contract.

(H) Upon receipt of a certified copy of the certificate of death or evidence of delivery of the merchandise or performance of the services pursuant to division (K) or (L) of this section, the trustee described in division (C)(2) of this section or its agent, shall forthwith pay the fund and accumulated interest, if any, to the person entitled to them under the preneed cemetery merchandise and services contract. The payment of the fund and accumulated interest pursuant to this section, either to a seller or person making the payments, shall relieve the trustee of any further liability on the fund or accumulated interest.

(I) Notwithstanding any other provision of this section, any preneed cemetery merchandise and services contract may specify that it is irrevocable. All irrevocable preneed cemetery merchandise and services contracts shall include a clear and conspicuous disclosure of irrevocability in the contract and any person entering into an irrevocable preneed cemetery merchandise and services contract shall sign a separate acknowledgment of the person's waiver of the right to revoke. If a contract satisfies the requirements of this division, division (G) of this section does not apply to that contract.

(J) Any preneed cemetery merchandise and services contract that involves the payment of money shall be in writing and in compliance with the laws and rules of this state.

(K) For purposes of this section, the seller is considered to have delivered merchandise pursuant to a preneed cemetery merchandise and services contract when either of the following occur:

(1) The seller makes actual delivery of the merchandise to the beneficiary, or the seller pays for the merchandise and identifies it as being stored for the benefit of the beneficiary at a manufacturer's warehouse.

(2) The seller receives delivery of the merchandise on behalf of the beneficiary, and all of the following occur:

(a) The merchandise is permanently affixed to or stored upon the real property of a cemetery located in this state.

(b) The seller notifies the beneficiary of receipt of the merchandise and identifies the specific location of the merchandise.

(c) The seller at the time of the beneficiary's final payment provides the beneficiary with evidence of ownership in the beneficiary's name showing the merchandise to be free and clear of any liens or other encumbrances.

(L) For purposes of this section, a seller is considered to have performed services pursuant to a preneed cemetery merchandise and services contract when the beneficiary's next of kin signs a written statement that the services have been performed or, if no next of kin of the beneficiary can be located through reasonable diligence, when the owner or other person responsible for the operation of the cemetery signs a statement of that nature.

(M) Notwithstanding any other provision of this chapter, any trust may be charged a trustee's fee, which is to be deducted from the earned income or accruals on that trust. The fee shall not exceed the amount that is regularly or usually charged for similar services rendered by the trustee described in division (C)(2) of this section when serving as a trustee.

(N) The general assembly intends that this section be construed as a limitation upon the manner in which a person is permitted to accept moneys in prepayment for merchandise and services to be delivered or provided in the future, or merchandise and services to be used or provided in connection with the final disposition of human remains, to the end that at all times members of the public may have an opportunity to arrange and pay for merchandise and services for themselves and their families in advance of need while at the same time providing all possible safeguards whereunder the prepaid moneys cannot be dissipated, whether intentionally or not, so as to be available for the payment for merchandise and services and the providing of merchandise and services used or provided in connection with the final disposition of dead human bodies.

(O) This section does not apply to the seller or provider of merchandise or services under a preneed cemetery merchandise and services contract if the contract pertains to a cemetery that is owned and operated entirely and exclusively by an established and legally cognizable church or denomination that is exempt from federal income taxation under section 501(c)(3) of the "Internal Revenue Code of 1954," 26 U.S.C.A. 501, an established fraternal organization, or a municipal corporation or other political subdivision of the state, to a cemetery that is a national cemetery, or to a cemetery that is a family cemetery as defined in section 4767.02 of the Revised Code; provided that, on a voluntary basis, rules and other measures are adopted to safeguard and secure all moneys received under a preneed cemetery merchandise and services contract.

(P) This section does not prohibit persons other than cemetery corporations or associations from selling outer burial containers, monuments, markers, urns, or other types of merchandise customarily sold by cemeteries pursuant to a preneed cemetery merchandise and services contract; however all sellers of merchandise pursuant to a preneed cemetery merchandise and services contract shall comply with this section unless the seller is specifically exempt from this section.

(Q) Any contract for preneed services or merchandise entered into with a cemetery not registered under section 4767.03 of the Revised Code is voidable.

Section 1721.23 | Cancellation of contract for sale of mausoleum space.

• Effective: January 1, 1993
• Latest Legislation: House Bill 733 - 119th General Assembly

(A) A contract for the sale of mausoleum space that is not ready for the entombment of human remains on the date of the contract shall stipulate that the buyer may cancel the contract if either of the following conditions apply:

(1) The construction of the mausoleum has not begun within the time period specified in the contract, which shall be not later than three years after the date of the contract;

(2) The certificate of use and occupancy has not been issued by the appropriate building official within the time period specified in the contract, which shall be not later than five years after the date of the contract.

(B) The contract shall state in bold print the options available to the purchaser, his executor, or administrator in the event that the purchaser or a member of his immediate family dies before completion of the mausoleum. The options shall include, but not be limited to, providing entombment in a temporary space.

(C) If a contract is canceled pursuant to division (A) of this section, the seller shall, within thirty days of cancellation, refund all moneys paid by the purchaser under the contract.

Section 1721.99 | Penalty.

• Effective: July 4, 1984
• Latest Legislation: Senate Bill 98 - 115th General Assembly

(A) Whoever violates section 1721.19 of the Revised Code shall be fined not less than five nor more than fifty dollars.

(B) Whoever violates section 1721.20 of the Revised Code shall be fined not less than fifty nor more than five hundred dollars.

(C) Whoever violates section 1721.21 or 1721.211 of the Revised Code shall be fined not more than five thousand dollars or imprisoned for not more than one year, or both.