Distributions from prearrangement trust fund deposits
(1) A master trustee or a depository may not make any distributions from prearrangement sales contract trust fund deposits except as provided in this section.
(2) The principal of a trust created pursuant to a prearrangement sales contract shall be paid to the certified provider who sold the contract if the certified provider who sold the contract swears, by affidavit, that the certified provider has delivered all merchandise and performed all services required under the prearrangement sales contract and delivers to the master trustee or the depository one of the following:
(a) A certified copy of a death record of the beneficiary; or
(b) A sworn affidavit signed by the certified provider and by:
(A) One member of the beneficiary’s family; or
(B) The executor of the beneficiary’s estate.
(3) The principal of a trust created pursuant to a prearrangement sales contract must be paid to the purchaser if the original certified provider is no longer qualified to serve as the certified provider under ORS 97.941 (Prearrangement or preconstruction trust fund deposits) (11).
(4) Upon completion by the certified provider of the actions described in subsection (2) of this section, the master trustee or the depository shall pay to the certified provider from the prearrangement sales contract trust fund an amount equal to the sales price of the merchandise delivered.
(5) Upon the final payment to the certified provider of the principal in trust under subsection (2) of this section, the undistributed earnings of the trust must be paid to:
(a) The certified provider who sold the contract if the contract is a guaranteed contract; or
(b) The contract purchaser, or the purchaser’s estate, if the contract is a nonguaranteed contract.
(6) The master trustee or the depository may rely upon the certifications and affidavits made to it under the provisions of ORS 97.923 (Definitions for ORS 97.923 to 97.949) to 97.949 (Notification by director to appropriate federal, state or local law enforcement officer of violation of ORS 97.923 to 97.949), 97.992 (Penalties for ORS 97.937), 97.994 (Penalties for ORS 97.931, 97.933, 97.941 and 97.943) and 692.180 (Grounds for revocation, suspension or refusal to issue or renew licenses or certificates), and is not liable to any person for such reliance.
(7) If a certified provider who sold a prearrangement sales contract does not comply with the terms of the prearrangement sales contract within a reasonable time after the certified provider is required to do so, the purchaser or heirs or assigns or duly authorized representative of the purchaser or the beneficiary has the right to a refund in the amount equal to the sales price paid for undelivered merchandise and unperformed services plus undistributed earnings amounts held in trust attributable to such contract, within 30 days of the filing of a sworn affidavit with the certified provider who sold the contract and the master trustee or the depository setting forth the existence of the contract and the fact of breach. A copy of this affidavit shall be filed with the Director of the Department of Consumer and Business Services. In the event a certified provider who has sold a prearrangement sales contract is prevented from performing by strike, shortage of materials, civil disorder, natural disaster or any like occurrence beyond the control of the certified provider, the certified provider’s time for performance is extended by the length of such delay.
(8) Except for an irrevocable contract described in ORS 97.939 (Prearrangement or preconstruction sales contracts) (4), at any time prior to the death of the beneficiary of a prearrangement sales contract, the purchaser of the prearrangement sales contract may cancel the contract and is entitled to a refund of all amounts paid on the contract, all amounts in trust including earnings allocated to the contract that are in excess of all amounts paid on the contract and unallocated earnings on trust contract amounts from the date of the last allocation to the date of the refund request, less any amounts paid for merchandise already delivered or services already performed, which amounts may be retained by the certified provider as compensation.
(9) Notwithstanding ORS 97.941 (Prearrangement or preconstruction trust fund deposits) (4) and subsection (5) of this section, a master trustee or certified provider may pay accounting fees, taxes, depository fees, investment manager fees and master trustee fees from earnings of trust fund deposits. Any payment of expenses or fees from earnings of a trust fund deposit under this subsection must not:
(a) Exceed an amount equal to two percent per calendar year of the value of the trust as determined at least once every six months as prescribed by the director by rule;
(b) Include the payment of any fee to the certified provider in consideration for services rendered as certified provider; or
(c) Reduce, diminish or in any other way lessen the value of the trust fund deposit so that the merchandise or services provided for under the contract are reduced, diminished or in any other way lessened. [Formerly 128.425; 2005 c.66 §1; 2007 c.661 §20; 2012 c.7 §10; 2013 c.366 §53]
Note: See note under 97.923 (Definitions for ORS 97.923 to 97.949).
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