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Model Guidelines for State Laws and Regulations

These guidelines are advisory in nature and set out general concepts rather than precise statutory language. The ICCFA is not recommending that the guidelines be codified into law as a whole. Instead, the guidelines are intended for consideration as a series of options to be selectively chosen by interested parties to address particular concerns.

Alternatives To Trusting - Constructive Delivery/Warehousing

      
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Developed in 1998 by the Government and Legal Affairs Task Force of the
International Cemetery and Funeral Association

BACKGROUND

Where the merchandise purchased in advance of need is designed to withstand prolonged storage without deterioration, the seller or provider of the merchandise can furnish the purchaser with custody of these items by storing them and by providing a receipt for the merchandise that allows the purchaser to arrange delivery of the merchandise on request. This procedure is known as "warehousing" and is one of several methods of "constructive delivery" of preneed merchandise prior to the death of the beneficiary.

Other alternatives to trusting, such as financial instruments and insurance-funded prearrangements, are reviewed under separate guidelines.

PRINCIPLES

  1. Prepaid contract trust fund arrangements require that the purchaser's funds cannot be paid out to the seller/provider until merchandise purchased under the contract is delivered. Warehousing gives the purchaser effective control over the merchandise and allows the seller/provider to perform the prepaid contract prior to the death of the prepaid contract beneficiary and receive proceeds from the prepaid contract trust fund.
     
  2. Constructive delivery can also be accomplished through other methods:
    1. Actual and physical delivery of the merchandise to the purchaser;
    2. Physical attachment or installation of the merchandise to an interment space owned by the purchaser;
    3. Certification from a manufacturer to the purchaser that the seller has paid the wholesale price of the merchandise, and it is being stored in an insured warehouse or similar facility and will be delivered on the purchaser's request;
    4. Written notification to the purchaser from the seller that the merchandise is stored in a protected environment in the seller's possession and may be removed by the purchaser upon full payment of the prepaid contract.
  3. Merchandise that is constructively delivered should be comprised of materials that are designed to withstand prolonged, protected storage without adversely affecting the structural integrity or aesthetic characteristics of such merchandise.
     
  4. The storage arrangement should include insurance coverage to protect the purchaser against damage or loss of the merchandise.
     
  5. The legal relationship between the seller/provider and the storage facility should be such that the merchandise cannot be attached or otherwise encumbered by the seller/provider or its creditors.