You can apply to register a funeral trust to the Director of Consumer Affairs and Fair Trading who must approve a funeral trust. The Director keeps a Register of approved funeral trusts.
As a funeral business you must supply certain documents each year.
- Consumer, Building and Occupational Services mails an Annual Return to each registered funeral business to be completed and returned before 31 December each year.
As a person in charge of managing the business of a funeral trust (the custodian) you must keep a list of prepaid funeral agreements you manage. The register must include:
- the name and address of each contributor and each recipient
- the date and amount of each payment received
- the name of another funeral trust to which any money or anything of value received is paid or transferred and
- the date when the agreement is cancelled, transferred or the funeral services are supplied.
A custodian of any funeral trust must keep accounts for each of the trusts you manage that shows the following:
- the trust account name and the institution holding the funds
- all investments, income, dividends or earnings relating to the funeral trust
- all money and anything of value received by the custodian
- administrative and investment expenses incurred by the custodian
- payments made from the funeral trust and
- any other accounting records normally required to be kept by a trustee.
NOTE: There are penalties for failing to meet these requirements.
Value of a funeral trust
The Director of Consumer Affairs and Fair Trading can ask an Actuary to work out the value of a funeral trust. This person must be either:
- a Fellow member of the Institute of Actuaries (Australia) or
- a suitable person approved by the Director.
The Actuary must:
- work out the total value of assets and liabilities of the funeral trust and
- provide a report to the custodian and the Director.
Investments of a funeral trust
As a custodian you must invest all money given to you, this is outlined in the Trustee Act 1898. The value of any investment made by the funeral trust is owned by that funeral trust. The value includes the amount invested as well as any increase because of earnings, dividends or interest on that investment. Only the custodian, or an authorised person acting on their behalf, can authorise investments, payments, withdrawals or the transfer of any assets or investments of the funeral trust.
Payments from a funeral trust
If you are a custodian of a funeral trust you can only withdraw money out of the funeral trust:
- to pay a funeral business for funeral services following the death of the person the agreement is for (the recipient) or
- to the contributor on the termination of a prepaid funeral agreement or
- for reasonable administrative expenses or
- for administration charges by the custodian in accordance with rules approved by the Director of Consumer Affairs and Fair Trading or
- if the prepaid funeral arrangement has been transferred to another funeral business and they:
- continue to act as custodian of that funeral trust or
- pay all money and transfer all investments held to the custodian of another nominated funeral trust.
As a custodian you must only withdraw from a funeral trust fund in accordance with the Prepaid Funerals Act 2004. Where an offence has been committed, a contributor, custodian or other interested person can apply to a magistrate.
Following the death of a recipient, as a custodian you must make the payment to the relevant funeral business. However the amount must not be more than:
- the cost to the funeral business to provide the funeral services required and
- any extra amount of GST that needs to be paid under the agreement.
If a payment is required following cancellation of a prepaid funeral agreement, the payment is to be made to the contributor. It is to include an amount representing a fair proportion of the value of the funeral trust, taking into account the time that the funds have been in the funeral trust.
A payment to a person taking over the funeral from the previous funeral business must be the same amount that was agreed to in the first agreement.
Restriction on withdrawal of funds from a funeral trust
The Director of Consumer Affairs and Fair Trading may make an order preventing any further withdrawal of money from any funeral trust account or investment if:
- a funeral trust is not being managed in line with the Prepaid Funerals Act 2004 (the Act) or
- a custodian or a funeral business has gone against the Act or
- a funeral trust is under investigation.
NOTE: There are penalties for failing to meet these requirements.
Insolvency of a funeral business
A funeral business may go out of business or stop trading and not transfer prepaid funeral agreements. The custodian must transfer to the contributors of the agreement all the funeral trust property and investments that relate to the insolvent funeral business.
Register a family trust
Any money paid under a prepaid funeral agreement must be put into an approved funeral trust within 14 days of receiving the money.
A prepaid funeral trust is created using section 10 of the Prepaid Funerals Act 2004 (the Act). It can be for the purposes of two or more financial businesses. The Director of Consumer Affairs and Fair Trading can approve, put conditions on, or end funeral trusts.
The Director must keep a register of all approved funeral trusts. You can register a funeral trust by completing an Application for Approval of a Funeral Trust.
Currently there are no funeral trusts registered with the Director of Consumer Affairs and Fair Trading.
Note: Most prepaid funds are paid into exempt schemes. Exempt schemes include companies registered under the Life Insurance Act 1995, Insurance Companies, Friendly Societies, and the 'Catholic Development Fund' which is administered by the Archbishop of the Roman Catholic Church in Tasmania.
Registered friendly societies and insurance companies
A funeral trust must appoint a person to act as manager (the custodian). The custodian must not benefit or have any interest in any funeral business that is going to benefit from the trust. The custodian is responsible to make sure that:
- payments by the funeral trust are made in accordance with the Act and the prepaid funeral agreement and
- funds held by the funeral trust are invested in accordance with the Trustee Act 1898 and
- the funeral trust is administered in accordance with the Act and any other legislation and
- all funeral trust investments are made or held in the name of the custodian unless otherwise allowed by the Director of Consumer Affairs and Fair Trading