440.90(8)
(8) "Preneed seller" means an individual who sells or solicits the sale of cemetery merchandise or an undeveloped space under a preneed sales contract or, if such an individual is employed by or acting as an agent for a cemetery authority or any other person, the cemetery authority or other person.
440.90(13)
(13) "Warehouse" means a place of storage for cemetery merchandise sold under a preneed sales contract.
440.90(14)
(14) "Wholesale cost ratio" means the actual cost to a preneed seller to supply and deliver cemetery merchandise or to construct an undeveloped space divided by the price paid by the purchaser, excluding sales tax, finance or interest charges and insurance premiums.
440.90 History
History: 1989 a. 307.
440.91
440.91
Cemetery authorities and cemetery salespersons. 440.91(1)(1) Except as provided in
sub. (6m), every cemetery authority that sells or solicits the sale of a total of 10 or more cemetery lots or mausoleum spaces during a calendar year and that pays any commission or other compensation to any person for selling or soliciting the sale of its cemetery lots or mausoleum spaces shall register with the department. The registration shall be in writing and shall include the names of the officers of the cemetery authority.
440.91(2)
(2) Except as provided in
subs. (7) and
(10), every individual who sells or solicits the sale of, or who expects to sell or solicit the sale of, a total of 10 or more cemetery lots or mausoleum spaces during a calendar year shall register with the department. An individual may not be registered as a cemetery salesperson except upon the written request of a cemetery authority and the payment of the fee specified in
s. 440.05 (1). The cemetery authority shall certify in writing to the department that the individual is competent to act as a cemetery salesperson. Within 10 days after the certification of any cemetery salesperson, the cemetery salesperson shall verify and furnish to the department, in such form as the department prescribes, all of the following information:
440.91(2)(d)
(d) Any other information which the department may reasonably require to enable it to determine the competency of the salesperson to transact the business of a cemetery salesperson in a manner which safeguards the interest of the public.
440.91(3)
(3) Any cemetery salesperson may transfer to the employment of a cemetery authority, other than the cemetery authority that certified the salesperson under
sub. (2), by filing a transfer form with the department and paying the transfer fee specified in
s. 440.05 (7).
440.91(4)
(4) Renewal applications shall be submitted to the department on a form provided by the department on or before the applicable renewal date specified under
s. 440.08 (2) (a) and shall include the applicable renewal fee specified under
s. 440.08 (2) (a).
440.91(5)
(5) Every cemetery authority requesting the registration or transfer of any cemetery salesperson shall be responsible for the acts of that salesperson while acting as a cemetery salesperson.
440.91(6m)
(6m) A cemetery authority of a cemetery organized, maintained and operated by a town, village, city, church, synagogue or mosque, religious, fraternal or benevolent society or incorporated college of a religious order is not required to be registered under
sub. (1).
440.91(7)
(7) An individual who solicits the sale of cemetery lots or mausoleum spaces in a cemetery organized, maintained and operated by a town, village, city, church, synagogue or mosque, religious, fraternal or benevolent society or incorporated college of a religious order is not required to be registered under
sub. (2).
440.91(9)
(9) No cemetery authority or cemetery salesperson registered under
sub. (1) or
(2) may pay a fee or commission as compensation for a referral or as a finder's fee relating to the sale of a cemetery lot, cemetery merchandise or mausoleum space to any person who is not registered under
sub. (1) or
(2) or who is not regularly and lawfully engaged in the sale of cemetery lots, cemetery merchandise or mausoleum spaces in another state or territory of the United States or a foreign country.
440.91(10)
(10) Nothing in this section requires an individual who is registered as a preneed seller under
s. 440.92 (1) to be registered as a cemetery salesperson under
sub. (2) if the individual only sells or solicits the sale of cemetery merchandise or undeveloped spaces under preneed sales contracts.
440.91 History
History: 1989 a. 307 ss.
75,
80 to
83,
91;
1991 a. 39,
269.
440.91 Cross-reference
Cross Reference: See also ch.
RL 50, Wis. adm. code.
440.92
440.92
Cemetery preneed sellers. 440.92(1)(a)(a) Except as provided in
subs. (4),
(9) (a) and
(10), every individual who sells or solicits the sale of cemetery merchandise or an undeveloped space under a preneed sales contract and, if the individual is employed by or acting as an agent for a cemetery authority or any other person, that cemetery authority or other person is required to be registered under this subsection.
440.92(1)(b)
(b) The department shall issue a certificate of registration as a cemetery preneed seller to any person who does all of the following:
440.92(1)(b)1.
1. Submits an application to the department on a form provided by the department.
440.92(1)(b)4.
4. Meets any other reasonable requirements established by the department by rule to determine fitness to sell cemetery merchandise or an undeveloped space under a preneed sales contract. The rules may not require applicants to meet minimum education, experience or prior employment requirements or to pass any examination.
440.92(1)(c)
(c) Renewal applications shall be submitted to the department on a form provided by the department on or before the applicable renewal date specified under
s. 440.08 (2) (a) and shall include the applicable renewal fee specified under
s. 440.08 (2) (a).
440.92(1)(e)
(e) Nothing in this subsection requires an individual who is registered as a cemetery salesperson under
s. 440.91 (2) to be registered under this subsection if the individual does not conduct or solicit any sale under a preneed sales contract.
440.92(2)(a)(a) A preneed sales contract for the sale of cemetery merchandise shall provide for the delivery of cemetery merchandise in one of the following ways:
440.92(2)(a)1.
1. By physically delivering the merchandise to the purchaser or the beneficiary named in the preneed sales contract.
440.92(2)(a)2.
2. By affixing the cemetery merchandise to the cemetery lot or mausoleum.
440.92(2)(a)3.
3. By storing the cemetery merchandise in a warehouse that is located on the property of the preneed seller if the preneed seller insures the cemetery merchandise and the preneed sales contract requires the preneed seller to ultimately affix the cemetery merchandise to the cemetery lot or mausoleum without additional charge.
440.92(2)(a)3g.
3g. By storing the cemetery merchandise anywhere on the property of the preneed seller if the property of the preneed seller is located in this state, the preneed seller insures the cemetery merchandise and the preneed sales contract requires the preneed seller to ultimately affix the cemetery merchandise to a cemetery lot, to the outside of or the grounds surrounding a mausoleum or to any other outdoor location without additional charge.
440.92(2)(a)4.
4. By having the cemetery merchandise stored in a warehouse that is not located on the property of the preneed seller if the warehouse has agreed to ship the cemetery merchandise to the preneed seller, purchaser or beneficiary named in the preneed sales contract without additional charge to the purchaser and the preneed sales contract requires that the cemetery merchandise ultimately be affixed to the cemetery lot or mausoleum without additional charge. If the cemetery merchandise is delivered under this subdivision, all of the following apply:
440.92(2)(a)4.a.
a. At the time that the preneed sales contract is entered into, the preneed seller shall provide the purchaser with the name, address and telephone number of the warehouse and inform the purchaser that the warehouse is approved by the department.
440.92(2)(a)4.b.
b. If the name, address, telephone number or approval status of the warehouse changes before the cemetery merchandise is delivered, the preneed seller or warehouse shall notify the purchaser in writing of each change within 30 days after the change.
440.92(2)(a)4.c.
c. The preneed sales contract shall provide for the cemetery merchandise to be delivered within 30 days after the purchaser or beneficiary requests the preneed seller or warehouse to deliver the cemetery merchandise and shall contain the procedure and any requirements for making the request.
440.92(2)(am)
(am) If a preneed sales contract for the sale of cemetery merchandise requires the preneed seller to ultimately affix the cemetery merchandise to a cemetery lot, mausoleum or other location but the purchaser has not informed the preneed seller of the location where the cemetery merchandise is to be affixed and the location where the cemetery merchandise is to be affixed is not specified in the preneed sales contract, the preneed sales contract may provide that the preneed seller may charge the purchaser an additional fee at the time that the cemetery merchandise is affixed not to exceed the additional costs to the preneed seller that are necessitated by the purchaser's choice of location.
440.92(2)(b)
(b) If a preneed sales contract does not require the preneed seller to deliver cemetery merchandise by one of the methods under
par. (a), the preneed seller shall deliver the cemetery merchandise under
par. (a) 2.
440.92(2)(c)
(c) Except as provided in
par. (cm), a preneed sales contract shall provide that if the purchaser voids the preneed sales contract at any time within 10 days after the date of the initial payment the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser for cemetery merchandise that has not been supplied or delivered and for the mausoleum space.
440.92(2)(cm)
(cm) If a preneed sales contract for the sale of cemetery merchandise requires the preneed seller to physically alter any cemetery merchandise, the preneed sales contract shall provide that if the purchaser voids the preneed sales contract at any time before the preneed seller has physically altered the cemetery merchandise in a manner or to a degree that makes the fair market value of the cemetery merchandise to the general public lower than the sale price of the cemetery merchandise under the preneed sales contract or within 10 days after the date of the initial payment, whichever occurs first, the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser for cemetery merchandise that has not been supplied or delivered.
440.92(2)(d)
(d) A preneed seller may not sell any undeveloped space unless the plans for the construction of the mausoleum have been submitted to the department of commerce for approval under
s. 157.12 (2) (a) and the preneed sales contract includes the following language in not less than 10-point boldface type: "THE PLANS FOR CONSTRUCTING THE MAUSOLEUM SPACE HAVE BEEN SUBMITTED TO THE DEPARTMENT OF COMMERCE FOR APPROVAL. THE SELLER IS RESPONSIBLE FOR ALL COSTS REQUIRED TO OBTAIN APPROVAL OF THE PLANS BY THE DEPARTMENT OF COMMERCE, COMPLETE THE CONSTRUCTION, AND OBTAIN CERTIFICATION OF THE CONSTRUCTION BY THE DEPARTMENT OF COMMERCE."
440.92(2)(e)
(e) A preneed sales contract for the sale of an undeveloped space shall provide that the purchaser may void the preneed sales contract if any of the following conditions applies:
440.92(2)(e)2.
2. The construction of the mausoleum does not begin within 3 years after the date of the sale.
440.92(2)(e)3.
3. If the mausoleum is a public mausoleum, the construction of the mausoleum is not certified under
s. 157.12 (2) (b) within 6 years after the date of the sale.
440.92(2)(f)
(f) If a preneed sales contract is voided under
par. (e), the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser, together with interest calculated at the legal rate of interest as provided under
s. 138.04.
440.92(2)(g)
(g) A preneed seller may include in a preneed sales contract provisions that do any of the following:
440.92(2)(g)1.
1. Place restrictions on the right of the purchaser to assign his or her interest in any undelivered cemetery merchandise or undeveloped space to any other person, but only if such restrictions are consistent with regulations, established by the cemetery authority of the cemetery in which the cemetery merchandise will ultimately be affixed or in which the undeveloped space is located, that specify who may or may not be buried in the cemetery.
440.92(2)(g)2.
2. Require the purchaser to notify the preneed seller that the purchaser has assigned his or her interest in any undelivered cemetery merchandise or undeveloped space to any other person within a reasonable period of time after the interest has been assigned.
440.92(2)(h)
(h) A provision in a preneed sales contract that purports to waive or is in conflict with any part of this section is void.
440.92(2)(i)
(i) If a preneed sales contract includes provisions for the sale of cemetery merchandise or an undeveloped space that is subject to the trusting requirements under
sub. (3) (a) and
(b) and for the sale of other goods or services that are not subject to the trusting requirements under
sub. (3) (a) and
(b), the sale price of the goods or services that are not subject to the trusting requirements may not be inflated for the purpose of allocating a lower sale price to the cemetery merchandise or undeveloped space that is subject to the trusting requirements.
440.92(2)(j)
(j) A preneed sales contract shall be in writing. The preneed seller shall provide the purchaser with a copy of the preneed sales contract at the time that the preneed sales contract is entered into. A provision in a written preneed sales contract that limits the terms of the transaction to those included in the written preneed sales contract and that disclaims any oral agreements pertaining to the transaction creates a rebuttable presumption that no oral preneed sales contract pertaining to the transaction exists. A preneed sales contract that is not in writing may not be voided by the preneed seller, but may be voided by the purchaser at any time before all of the cemetery merchandise purchased has been delivered, before the plans for constructing the mausoleum have been approved under
s. 157.12 (2) (a) or, if the mausoleum is a public mausoleum, before the construction of the mausoleum has been certified under
s. 157.12 (2) (b). If a preneed sales contract is voided under this paragraph, the preneed seller shall, within 30 days after the date on which the preneed sales contract is voided, refund all money paid by the purchaser, together with interest calculated at the legal rate of interest as provided under
s. 138.04.
440.92(2)(k)
(k) A preneed sales contract shall include the following language in not less than 10-point boldface type: "SECTION 440.92 (2) OF THE WISCONSIN STATUTES SPECIFIES THE RIGHTS OF THE PURCHASER UNDER THIS CONTRACT. DEPENDING ON THE CIRCUMSTANCES, THESE MAY INCLUDE THE RIGHT TO VOID THE CONTRACT AND RECEIVE A REFUND OR THE RIGHT TO ASSIGN AN INTEREST IN THE CONTRACT TO ANOTHER PERSON."
440.92(3)
(3) Deposits in preneed trust fund and care fund. 440.92(3)(a)(a) A preneed seller shall deposit into a preneed trust fund an amount equal to at least 40% of each payment of principal that is received from the sale of cemetery merchandise under a preneed sales contract, or the wholesale cost ratio for the cemetery merchandise multiplied by the amount of the payment of principal that is received, whichever is greater. In addition to the amount required to be deposited under this paragraph for the sale of cemetery merchandise and except as provided in
par. (c), if a preneed seller receives payment for the sale of an undeveloped space under a preneed sales contract, the preneed seller shall deposit a percentage of each payment of principal that is received from the sale of the undeveloped space into a preneed trust fund, determined as follows:
440.92(3)(a)1.
1. If the actual cost to the preneed seller of constructing the undeveloped space in accordance with construction plans approved under
s. 157.12 (2) (a) has been determined by a registered architect or engineer and accepted in a written construction agreement by both the preneed seller and the person who has agreed to construct the mausoleum, the minimum percentage of each payment of principal that must be deposited into the preneed trust fund is the percentage equal to the wholesale cost ratio for the undeveloped space. In this subdivision, "registered architect or engineer" means a person who is registered as an architect or engineer under
ch. 443.
440.92(3)(a)2.
2. If the cost to the preneed seller of constructing the undeveloped space has not been determined as provided in
subd. 1., the preneed seller shall deposit at least 40% of each payment of principal into the preneed trust fund.
440.92(3)(b)
(b) The preneed seller shall make the deposits required under
par. (a) within 30 business days after the last day of the month in which each payment is received. Preneed trust funds shall be deposited and invested as provided in
s. 157.19.
440.92(3)(c)
(c) A preneed seller is not required to make the deposits required under
par. (a) 1. and
2. if any of the following applies:
440.92(3)(c)2.
2. The undeveloped space is located in a mausoleum or project of mausoleums in which at least one mausoleum space was sold before November 1, 1991. In this subdivision, "project of mausoleums" means a group of mausoleums that have been or are intended to be built and arranged in a cemetery according to a single construction plan approved under
s. 157.12 (2) (a).
440.92(3)(c)3.
3. The preneed seller files with the department a bond furnished by a surety company authorized to do business in this state or an irrevocable letter of credit from a financial institution and the amount of the bond or letter of credit is sufficient to secure the cost to the cemetery authority of constructing the mausoleum.
440.92(3)(d)
(d) If payments are received under a preneed sales contract for an undeveloped space, the preneed seller shall make deposits into the care fund required under
s. 157.12 (3) in addition to any deposits required under
par. (a).
440.92(4)
(4) Exceptions to registration requirement. 440.92(4)(a)(a) Any person who sells or solicits the sale of cemetery merchandise under a preneed sales contract is not required to be registered under
sub. (1) and the requirements of
sub. (3) (a) and
(b) do not apply to the sale if all payments received under the preneed sales contract are trusted as required under
s. 445.125 (1) (a) 1. or if all of the following conditions are met:
440.92(4)(a)1.
1. The preneed seller guarantees that the cemetery merchandise will be delivered not more than 180 days after the date of the sale.
440.92(4)(a)2.
2. The cemetery merchandise is delivered or the preneed sales contract is voided not more than 180 days after the date of the sale.
440.92(4)(b)
(b) If any preneed seller who is not registered under
sub. (1) accepts a payment under a preneed sales contract and the merchandise is not delivered within 180 days after the date of the sale, the preneed seller shall immediately notify the purchaser that the purchaser is entitled to a refund of all money paid by the purchaser, together with interest calculated at the legal rate of interest as provided under
s. 138.04, at any time before the merchandise is delivered.
440.92(5)
(5) Use of preneed trust funds to cover costs of construction or partial performance. 440.92(5)(a)(a) Before the construction of a mausoleum for which a preneed trust fund has been established is certified under
s. 157.12 (2) (b), the trustee of the preneed trust fund shall, upon receipt of a written request for the release of a specified amount of the funds from the preneed seller and the person who is constructing the mausoleum, release the specified amount of the funds, but only if the request is accompanied by a sworn statement, signed by the preneed seller and the person who is constructing the mausoleum, certifying that the specified amount does not exceed the amount charged to the preneed seller by the person who is constructing the mausoleum for labor that has actually been performed and materials that have actually been used in the construction of the mausoleum, and does not include any cost for which preneed trust funds have been previously released under this paragraph.
440.92(5)(b)
(b) Before all of the terms of a preneed sales contract for the sale of cemetery merchandise are fulfilled, the trustee of the preneed trust fund shall, upon receipt of a written request for the release of a specified amount of the funds from the preneed seller, release the specified amount of the funds, but only if the request is accompanied by a sworn statement, signed by the preneed seller, certifying that the specified amount does not exceed the actual cost to the preneed seller for any cemetery merchandise that has actually been supplied or delivered and for any cemetery services that have actually been performed, and does not include any cost for which preneed trust funds have been previously released under this paragraph.
440.92(6)
(6) Reporting; record keeping; audits. 440.92(6)(a)(a) Every preneed seller registered under
sub. (1) shall file an annual report with the department. The report shall be made on a form prescribed and furnished by the department. The report shall be made on a calendar-year basis unless the department, by rule, provides for other reporting periods. The report is due on or before the 60th day after the last day of the reporting period.
440.92(6)(b)
(b) The preneed seller shall include all of the following in the annual report under
par. (a):
440.92(6)(b)1.
1. If the preneed seller is a corporation that is required to file a report under
s. 180.1622 or
181.1622, a copy of that report and the name, residence address and business address of each shareholder who beneficially owns, holds or has the power to vote 5% or more of any class of securities issued by the corporation.
440.92(6)(b)2.
2. An accounting of amounts deposited in, amounts withdrawn from, income accruing to and the balance at the close of the reporting period of each preneed trust fund for which the preneed seller is the trustee.
440.92(6)(c)
(c) A preneed seller who is the trustee of any trust fund under
s. 445.125 (1) shall include in the report required under
par. (a) an accounting of amounts deposited in, amounts withdrawn from, income accruing to and the balance at the close of the reporting period of such trust funds.
440.92(6)(d)
(d) All records described under
pars. (b) 2. and
(c) and maintained by the department are confidential and are not available for inspection or copying under
s. 19.35 (1). This paragraph does not apply to any information regarding the name, address or employer of or financial information related to an individual that is requested under
s. 49.22 (2m) by the department of workforce development or a county child support agency under
s. 59.53 (5).
440.92(6)(e)
(e) The department shall review each report filed under
par. (a) to determine whether the preneed seller is complying with this section.
