Chapter 440

440.91(9) (9) No cemetery authority or cemetery salesperson licensed 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 cemetery merchandise or a burial space to any person who is not licensed under sub. (1) or (2) or who is not regularly and lawfully engaged in the sale of cemetery merchandise or burial 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 licensed as a preneed seller under s. 440.92 (1) to be licensed as a cemetery salesperson under sub. (2) if the individual only sells or solicits the sale of cemetery services and 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; 2005 a. 25; 2007 a. 20, 174; 2009 a. 180; 2011 a. 146; 2015 a. 237.

440.91 Cross-reference Cross-reference: See also chs. CB 1 and 2, Wis. adm. code.

440.92 440.92 Cemetery preneed sellers.

440.92(1) (1) Licensure.

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 services and 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 also required to be licensed under this subsection.

440.92(1)(b) (b) The board shall issue a certificate of licensure 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 board on a form provided by the board.

440.92(1)(b)2. 2. Pays the initial credential fee determined by the department under s. 440.03 (9) (a).

440.92(1)(b)3. 3. Subject to ss. 111.321, 111.322, and 111.335, submits evidence satisfactory to the board that the person does not have a conviction record.

440.92(1)(b)4. 4. Meets any other reasonable requirements established by the board by rule to determine fitness to sell cemetery services and 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)(bm) (bm) If a cemetery authority that is licensed under this subsection notifies the board that it proposes to take an action specified in s. 157.08 (2) (b) and the board does not object to the action under s. 157.08 (2) (b), the board shall revoke the license and require the cemetery authority to reapply for a license under this subsection.

440.92(1)(c) (c) Renewal applications shall be submitted to the board on a form provided by the board on or before the applicable renewal date specified under s. 440.08 (2) (a) and shall include the applicable renewal fee determined by the department under s. 440.03 (9) (a).

440.92(1)(e) (e) Nothing in this subsection requires an individual who is licensed as a cemetery salesperson under s. 440.91 (2) to be licensed under this subsection if the individual does not conduct or solicit any sale under a preneed sales contract.

440.92(2) (2) Preneed sales contracts.

440.92(2)(a) (a) A preneed sales contract for the sale of cemetery services and 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 board.

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 board 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 CEMETERY BOARD FOR APPROVAL. THE SELLER IS RESPONSIBLE FOR ALL COSTS REQUIRED TO OBTAIN APPROVAL OF THE PLANS BY THE CEMETERY BOARD, COMPLETE THE CONSTRUCTION, AND OBTAIN CERTIFICATION OF THE CONSTRUCTION BY THE CEMETERY BOARD.”

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)1. 1. The plans for constructing the mausoleum are not approved under s. 157.12 (2) (a).

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 percent 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 percent 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)1. 1. The mausoleum is certified under s. 157.12 (2) (b) within 30 business days after the payment is received.

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 board a bond furnished by a surety company authorized to do business in this state or files with the board and maintains 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 licensed 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 licensed 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 licensed under sub. (1) shall file an annual report with the board. The report shall be made on a form prescribed and furnished by the board. The report shall be made on a calendar-year basis unless the board, 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 181.0214, 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 percent 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 board 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 children and families or a county child support agency under s. 59.53 (5).

440.92(6)(e) (e) The board shall review each report filed under par. (a) to determine whether the preneed seller is complying with this section.

440.92(6)(f) (f) The preneed seller shall keep a copy of the report required under par. (a) at its principal place of business and, except for those records described under pars. (b) 2. and (c), shall make the report available for inspection, upon reasonable notice, by any person with an interest in purchasing cemetery merchandise or a mausoleum space from the preneed seller or by any person who has entered into or is the beneficiary of a preneed sales contract with the preneed seller.

440.92(6)(g) (g) The preneed seller shall maintain all of the following:

440.92(6)(g)1. 1. The records needed to prepare the reports required under par. (a).

440.92(6)(g)2. 2. Records that show, for each deposit in a trust fund or account specified in pars. (b) 2. and (c), the name of the purchaser or beneficiary of the preneed sales contract relating to the deposit and the item purchased.

440.92(6)(g)3. 3. A copy of each preneed sales contract.

440.92(6)(h) (h) The records under par. (b) 1. shall be permanently maintained by the preneed seller. The records under par. (b) 2. shall be maintained for not less than 3 years after all of the obligations of the preneed sales contract have been fulfilled. The board may promulgate rules to establish longer time periods for maintaining records under this paragraph.

440.92(6)(i) (i) The board may promulgate rules requiring preneed sellers licensed under sub. (1) to maintain other records and establishing minimum time periods for the maintenance of those records.

440.92(6)(j) (j) The board may audit, at reasonable times and frequency, the records, trust funds and accounts of any preneed seller licensed under sub. (1), including records, trust funds and accounts pertaining to services provided by a preneed seller which are not otherwise subject to the requirements under this section. The board may conduct audits under this paragraph on a random basis, and shall conduct all audits under this paragraph without providing prior notice to the preneed seller.

440.92(6)(k) (k) The board may promulgate rules establishing a filing fee to accompany the report required under par. (a). The filing fee shall be based on the approximate cost of regulating preneed sellers.

440.92(7) (7) Approval of warehouses. No person may own or operate a warehouse unless the warehouse is approved by the board. Upon application, the board shall approve a warehouse that is located in this state if the person who operates the warehouse is licensed as a public warehouse keeper by the department of agriculture, trade and consumer protection under ch. 99, but may not approve a warehouse that is located in this state unless the person is so licensed. The board shall promulgate rules establishing the requirements for approval of warehouses that are located outside this state. The rules shall require warehouses that are located outside this state to file with the board a bond furnished by a surety company authorized to do business in this state in an amount that is sufficient to guarantee the delivery of cemetery merchandise to purchasers under preneed sales contracts. The board shall compile and keep a current list of the names and addresses of all warehouses approved under this subsection and shall make the list available for public inspection during the times specified in s. 230.35 (4) (f).

440.92(9) (9) Exemptions; certification of compliance of cemetery affiliated with religious association.

440.92(9)(a) (a) If the cemetery authority of a cemetery that is affiliated with a religious association or that religious association files an annual certification with the board as provided in this subsection, neither the cemetery authority nor any employee of the cemetery is required to be licensed as a cemetery preneed seller under sub. (1) during the period for which the certification is effective.

440.92(9)(b) (b) A certification under this subsection shall be made on a form prescribed and furnished by the board and include all of the following:

440.92(9)(b)1. 1. The name and address of each cemetery to which the certification applies.

440.92(9)(b)2. 2. The name, address and social security number of each employee of the cemetery who sold or solicited the sale of cemetery merchandise or an undeveloped space under a preneed sales contract for the cemetery during the 12-month period immediately preceding the date on which the certification is filed with the board.

440.92(9)(b)3. 3. A statement of a person who is legally authorized to act on behalf of the religious association under this subsection that, during the 12-month period immediately preceding the date on which the certification is filed with the board, each employee specified under subd. 2. and the cemetery authority have either fully complied or have substantially complied with subs. (2), (3) (a) and (b) and (5).

440.92(9)(c) (c) If the statement under par. (b) 3. includes a statement of substantial compliance, the statement of substantial compliance must also specify those instances when the employee or cemetery authority did not fully comply with sub. (2), (3) (a) or (b) or (5).

440.92(9)(d) (d) A certification under this subsection is effective for the 12-month period immediately following the date on which the certification is filed with the board.

440.92(9)(e) (e) During the effective period specified under par. (d), the board may not audit the preneed trust funds or any records or accounts relating to the preneed trust funds of the cemetery authority or any employee of the cemetery to which a certification under this subsection applies.

440.92(9)(f) (f) The religious association that is affiliated with a cemetery to which a certification under this subsection applies is liable for the damages of any person that result from the failure of any employee specified under par. (b) 2. or the cemetery authority to fully comply with sub. (2), (3) (a) or (b) or (5) during the 12-month period for which such compliance has been certified under this subsection.

440.92(10) (10) Exemptions; certain cemeteries. This section does not apply to a cemetery authority that is not required to be licensed under s. 440.91 (1) or registered under s. 440.91 (1m).