497.283, the delivery of funeral merchandise before the death of the person for whom it is purchased does not constitute performance or fulfillment, either wholly or in part, of any preneed contract entered into after July 1, 1977. (3)(a) The trustee shall make regular valuations of assets it holds in trust and provide a fair market value report of such valuations to the preneed licensee at least quarterly.
(b) Any person who withdraws appreciation in the value of trust, other than the pro rata portion of such appreciation which may be withdrawn upon the death of a contract beneficiary or upon cancellation of a preneed contract, shall be required to make additional deposits from her or his own funds to restore the aggregate value of assets to the value of funds deposited in trust, but excluding from the funds deposited those funds paid out upon preneed contracts which such person has fully performed or which have been otherwise withdrawn, as provided for in this chapter.
(c) The preneed licensee shall be liable to third parties to the extent that income from the trust is not sufficient to pay the expenses of the trust.
(4) The licensing authority may adopt rules exempting from the prohibition of paragraph (1)(h), pursuant to criteria established in such rule, the investment of trust funds in investments, such as widely and publicly traded stocks and bonds, notwithstanding that the licensee, its principals, or persons related by blood or marriage to the licensee or its principals have an interest by investment in the same entity, where neither the licensee, its principals, or persons related by blood or marriage to the licensee or its principals have the ability to control the entity invested in, and it would be in the interest of the preneed contract holders whose contracts are secured by the trust funds to allow the investment.
(5) The trustee of the trust established pursuant to this section shall only have the power to:(a) Invest in investments as prescribed in s. 518.11 and exercise the powers set forth in part VIII of chapter 736. However, the trustee may not invest in, or count as assets, life insurance policies or annuity contracts; real estate may not compose more than 25 percent of the trust’s assets; and the licensing authority may by order require the trustee to liquidate or dispose of any investment within 30 days after such order, or within such other times as the order may direct. The licensing authority may issue such order if it determines that the investment violates any provision of this chapter or is not in the best interests of the preneed contract holders whose contracts are secured by the trust funds. (b) Borrow money up to an aggregate amount of 10 percent of trust assets, at interest rates then prevailing from any individual, bank, insurance company, or other source, irrespective of whether any such person is then acting as trustee, and to create security interests in no more than 10 percent of trust assets by mortgage, pledge, or otherwise, upon the terms and conditions and for such purposes as the trustee may deem advisable.
(c) Commingle the property of the trust with the property of any other trust established pursuant to this chapter and make corresponding allocations and divisions of assets, liabilities, income, expenses, and capital gains and losses.
(6) The amounts required to be placed in a trust by this section for contracts previously entered into shall be as follows:(a) For contracts entered into before October 1, 1993, the trust amounts as amended by s. 6, chapter 83-316, Laws of Florida, shall apply.
(b) For contracts entered into on or after October 1, 1993, the trust amounts as amended by s. 98, chapter 93-399, Laws of Florida, shall apply.
History.—s. 6, ch. 28211, 1953; s. 8, ch. 65-393; s. 5, ch. 77-438; s. 247, ch. 79-400; s. 2, ch. 81-318; ss. 6, 31, 32, 33, ch. 83-316; s. 9, ch. 88-139; s. 68, ch. 89-360; ss. 98, 122, ch. 93-399; s. 22, ch. 96-400; s. 1149, ch. 97-103; s. 8, ch. 98-268; s. 9, ch. 2001-120; s. 107, ch. 2004-301; s. 98, ch. 2005-2; s. 37, ch. 2005-155; s. 59, ch. 2006-1; s. 14, ch. 2006-217; s. 21, ch. 2016-172; s. 32, ch. 2017-3; s. 10, ch. 2019-140; s. 12, ch. 2021-113.
1Note.—Section 25, ch. 2016-172, provides that “[t]he repeal of s. 497.461, Florida Statutes, by this act does not apply to a preneed licensee who has elected to maintain a surety bond in lieu of depositing funds into a trust as of July 1, 2016.” Note.—Former s. 639.11; s. 497.417.