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Maine Mortuary Trust Agreement – Credit for Service

November 10, 2009 – Page 12 of 12

Maine Mortuary Trust Agreement

for the benefit of

1.Creation

Mortuary trust. The mortuary trust is the fund created by this agreement to be applied to the provision of funeral and burial services to the beneficiary. The mortuary trust consists of the initial payment made for that purpose upon the signing of this agreement, any money added to the fund at a later date, and all interest and investment income earned by the fund, less fees and taxes paid pursuant to the terms of this agreement.

2.Parties

Beneficiary. The beneficiary is the person who will receive the funeral and burial services described in this agreement. The beneficiary is:

(name)

Payor. The payor is the person who is funding this mortuary trust. The payor is:

(name)

(relationship to beneficiary)

(address)

(city, state, zip)

(telephone)

Funeral home. The funeral home is the trustee for all money paid into the mortuary trust. The funeral home may be an individual, a firm, an association, a partnership or a corporation. The payor hereby appoints the funeral home identified below as trustee. The funeral home need not post bond or enter security. By signing this agreement, the funeral home accepts this appointment as trustee of the mortuary trust.

(name)

(address)

(city, state, zip)

(telephone)

Representative of payor (check if applicable). This is the person for the funeral home to contact and report to in lieu of the payor for all purposes under this agreement. The representative of the payor may exercise all powers and authority conferred upon the payor by this agreement:

(name)

(relationship to beneficiary)

(address)

(city, state, zip)

(telephone)

Alternate contact person (check if applicable). This is the person for the funeral home to contact and report to for all purposes under this agreement in the event that the payor or representative of the payor is deceased, incapacitated or otherwise unavailable:

(name)

(relationship to beneficiary)

(address)

(city, state, zip)

(telephone)

itial Payment

T

$

he funeral home hereby acknowledges receipt in trust of an initial payment in the amount shown. Payment was made in the form of □ cash □ check □ share draft □ money order. (check one) If payment was made by check, share draft or money order, a photocopy must be attached to each copy of this agreement.

4.Deposit of Initial Payment

The funeral home shall deposit the initial payment in a separate account in the financial institution or credit union identified below within ten (10) days after receipt of the initial payment from the payor:

(name of financial institution or credit union)

(address)

(city, state, zip)

(telephone)

Important Instructions to Payor

  1. Make your check, share draft or money order payable solely to the financial institution or credit union identified above—not to the funeral home.

  2. Write the names of the funeral home and beneficiary on the check, share draft or money order for identification purposes.

  3. For your protection, mail a copy of this agreement to the financial institution or credit union with instructions to contact you if the initial payment is not received from the funeral home.



5.Deposit of Additional Payments

The funeral home shall deposit any money added to the mortuary trust at a later date within ten (10) days after receipt of the additional money from the payor.

6.Record of Account; Inspection of Record

The funeral home shall maintain a complete record of the initial payment and any additional payments into the mortuary trust, including principal and interest, and of all fees and taxes paid from the trust. The record must contain the name and address of the financial institution or credit union and the dates and amounts of all deposits and withdrawals.

The funeral home shall make the amount of initial deposit, cumulative interest/additional deposits, cumulative expenses and current balance available for inspection by the payor without prior notice during regular office hours. The funeral home shall make the complete record available for inspection within thirty (30) days following receipt of a request for complete inspection from the payor.

7.Permissible Investments

The initial deposit into the mortuary trust must be deposited in:

□ a federally insured deposit or share account □ a trust account. (check one)

A deposit in a trust account may be invested in or used to purchase only the following:

  • Federally insured deposit or share accounts;

  • Securities issued, insured or guaranteed by the United States or by any agency or corporate or other instrumentality of the United States;

  • Municipal securities that are exempt from registration under 32 MRSA §10502(1)(A); and

  • Permanent life insurance, other than variable life insurance and annuities, from an insurer authorized to transact insurance in this State, subject to the provisions of 24-A MRSA, chapter 27. A funeral home, its employees and agents may not receive any commission, fee or other consideration from an insurer in connection with the procurement or purchase of insurance permitted by this subparagraph.

If the funeral home subsequently transfers or deposits all or any part of the mortuary trust into the investment category not initially selected by the payor (i.e., federally insured account or trust account), the funeral home shall notify the payor within ten (10) days after making the deposit or transfer. No additional consent of the payor is necessary to authorize the change.

8.Revocability

This mortuary trust agreement is □ revocable □ irrevocable. (check one)

A revocable agreement may be terminated by the payor at any time, in which case the funeral home shall refund the entire mortuary trust to the payor, less any fee permitted by paragraph 21 and any taxes paid pursuant to paragraph 22. The refund must be made within thirty (30) days after receipt of written notice of revocation from the payor.

An irrevocable agreement may not be terminated by the payor. However, the payor retains the right to transfer the mortuary trust to a different funeral home at any time by requesting the resignation of the trustee pursuant to paragraph 17 and appointing a successor trustee pursuant to paragraph 18.

9.Credit for Service Mortuary Trust

T

I have explained to the payor the difference between the credit for service mortuary trust created by this agreement and a guaranteed service mortuary trust.

(funeral home)


I understand the difference between the credit for service mortuary trust created by this agreement and a guaranteed service mortuary trust.

(payor)


he mortuary trust created by this agreement is a credit for service mortuary trust. The funeral home may also offer a guaranteed service mortuary trust, but is not required to do so.

10.Funeral Goods and Services Selected (check one)

Funeral Goods and services may be selected at the present time or at any later time. Check one of the two options below.

□ Upon the death of the beneficiary, the funeral home shall, to the extent that trust funds are available—

  • Provide the funeral goods and services selected by the payor on a Statement of Funeral Goods and Services Selected that complies with the Federal Trade Commission Funeral Rule, 16 CFR Part 453. The Statement of Funeral Goods and Services Selected must include the manufacturer, model number and a detailed description of any funeral merchandise selected by the payor; and

  • Pay the cash advance items identified on the Statement of Funeral Goods and Services Selected.

A copy of the Statement of Funeral Goods and Services Selected is attached to this agreement.

□ The payor has decided not to select any funeral goods and services at this time. The payor may make this selection at any time up to the death of the beneficiary. After the death of the beneficiary, selection of funeral goods and services may be made by the authorized person as determined pursuant to 22 MRSA §2843-A.

11.Price of Funeral Goods and Services Selected

The price of the funeral goods and services selected and the designated cash advance items will be the prices in effect at the time of the beneficiary’s death, which may be higher or lower than the prices presently in effect.

12.Permissible Uses of Trust Funds

The funeral home shall apply the mortuary trust funds solely to—

  • The price of the funeral goods and services and cash advance items provided by the funeral home pursuant to paragraph 10;

  • Any partial refund to the payor required by paragraph 13;

  • Any complete refund to the payor required by paragraph 13 due to the funeral home’s inability to perform its obligations under this agreement;

  • Any complete refund to the payor required by paragraph 8 if this mortuary trust agreement is revocable and the payor has revoked the trust;

  • Payment of any fees permitted by paragraph 21; and

  • Payment of taxes pursuant to paragraph 22 or otherwise.

13.Partial Refund of Trust Funds to Payor; Inability of Funeral Home to Perform

If the price of the funeral goods and services and cash advance items selected is less than the account balance of the mortuary trust at the time of the beneficiary’s death, the funeral home shall promptly remit the difference to (check one):

□ the estate of the beneficiary, if other than the payor

□ the payor

□ the following person or persons (insert details below)

If the payor has been designated above to receive any excess trust funds, the funeral home, as an alternative to remittance of excess trust funds to the payor, may make a separate agreement with the payor for the purchase of additional or upgraded funeral goods or services or cash advance items from the excess trust funds. This agreement must be documented on a Statement of Funeral Goods and Services Selected.

If the funeral home is unable for any reason to perform its obligations under this agreement, the funeral home shall return all trust funds in accordance with the designation made in this paragraph.

14.Additional Payment by Payor

If the price of the funeral goods and services and cash advance items selected is greater than the account balance of the mortuary trust at the time of the beneficiary’s death, the payor and the funeral home shall do either or both of the following:

  • Make an agreement for additional payment;

  • Modify the goods or services or cash advance items selected.

However, in no event is the funeral home obligated to provide funeral goods or services or make cash advances for which the funeral home will not be compensated.

15.Transfer of Mortuary Trust

This agreement constitutes the payor’s written consent to the direct transfer of the mortuary trust funds by the funeral home from one financial institution or credit union to another financial institution or credit union, or, if the trust is revocable, to the payor. The funeral home may direct the transfer of the mortuary trust funds to another financial institution or credit union for any reason consistent with the purpose of this agreement and the governing law and rules. No additional written consent of the payor is necessary to authorize the transfer.

16.Withdrawal of Mortuary Trust Funds

The funeral home may withdraw money from the mortuary trust only upon presentation of a certified copy of the death certificate of the beneficiary and only for the purposes listed in paragraph 12, provided that presentation of the death certificate need not be made for withdrawals to pay fees as permitted by paragraph 21, to pay taxes as permitted by paragraph 22 or otherwise, or to pay the complete refund to the payor permitted by paragraph 8 (if this mortuary trust agreement is revocable and the payor has revoked the trust).

17.Resignation of Funeral Home as Trustee

The funeral home shall resign as trustee if—

  • The funeral home becomes unable or incapable of continuing to act as trustee;

  • The payor for any reason requests the funeral home to resign as trustee ; or

  • The funeral home closes, and the owner of the home does not own any other funeral home in Maine.

A funeral home resigns as trustee by delivering to the payor, and to any successor trustee identified by the payor pursuant to paragraph 18:

  • Written notice of resignation;

  • This mortuary trust agreement, including any Statement of Funeral Goods and Services Selected that is attached to this agreement;

  • Control of the trust funds to the payor or successor trustee, as the case may be; and

  • An accounting of trust funds as of the date of resignation that contains the information described in paragraph 20;

If the payor has requested the resignation, the funeral home shall complete the resignation as described above within thirty (30) days after receiving a written request to resign from the payor.

If the funeral home closes, but the owner of the home owns one or more other funeral homes in Maine, the funeral home may resign as trustee in the manner described above in this paragraph. Alternatively, the funeral home may notify the payor of its proposal to transfer the mortuary trust, and the obligations of successor trustee, to another funeral home in Maine under common ownership. The notice must be sent by first class mail. If the notice is returned as undeliverable, the returned envelope must be kept in the file. The payor may, within thirty (30) days of receipt of notice, either (a) accept the proposal, or (b) request the resignation of the trustee as described above in this paragraph. If the payor chooses resignation, the payor may either name a successor trustee or request a refund of the trust, as the case may be. In the event that the funeral home does not receive a response from the payor within this thirty (30) day period, the funeral home may either transfer the mortuary trust as proposed or resign as trustee.

18.Appointment of Successor Trustee

If the funeral home resigns as trustee pursuant to paragraph 17, the payor may appoint a different funeral home as successor trustee.

19.Change of Trustee Upon Change of Ownership

Within thirty (30) days after a change of ownership of the funeral home, the new owner, or the funeral home, shall notify the payor of the change and shall inform the payor that the new owner has assumed the role of trustee under this agreement and will provide all funeral goods and services required by this agreement. The notice must also state that the payor is free at any time to request the resignation of the trustee and designate a different funeral home as successor trustee pursuant to paragraphs 17 and 18. For purposes of this paragraph, “change of ownership” means the sale or transfer of the entire ownership of a funeral home.

20.Final Accounting by Funeral Home; Termination of Trust

The funeral home shall furnish the payor with a final accounting of trust funds within thirty (30) days after rendition of final services. The mortuary trust terminates upon delivery of the accounting and payment of any partial refund required by paragraph 8 or 13.

21.Fees

No fees may be charged against or deducted from the mortuary trust by the funeral home except for the following:

Description Amount

Transfer of account by appointment of successor trustee

Revocation of revocable agreement

Actual financial and tax administration of the account

performed by or on behalf of the funeral home

Notice to Payor

The maximum fees the funeral home can charge for the three services listed above are contained in Chapter 16 of the rules of the State Board of Funeral Service. As established by the Board, those maximum amounts are: 7% of trust funds, not to exceed $250, for a transfer; 7% of trust funds, not to exceed $250, for a revocation; and 25% of net interest earned per annum, not to exceed $125, for annual tax and financial administration. This agreement may not contain any other fees.


22.Taxes (check one)

23.M
aine Law Controlling

The situs of this mortuary trust is Maine. The validity, construction and administration of the trust shall be governed by Maine law, including but not limited to The Maine Uniform Trust Code, 18-B MRSA §101 et seq., 32 MRSA §1401 and Chapter 16 of the rules of the State Board of Funeral Service.

24.Binding on Legal Representatives

This agreement is binding upon and runs to the benefit of the heirs, devisees, personal representatives, successors and assigns of the parties.

(signature page follows)

Dated at _________________, Maine this _____ day of ______________, 2____.

Payor:

Funeral Home:

( funeral practitioner)

(license number)

(position)

(owners of funeral home)

(addresses of owners)



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