West Virginia cremation, cemetery and prepaid-funeral rights

West Virginia requires every crematory to be licensed. Each license covers one crematory at a specific street address, and a licensed crematory must have a certified crematory operator in charge. Alkaline hydrolysis needs its own certificate from the same state board and must follow all requirements for cremation. Ask which facility will handle the remains and check its license or certificate. [1][2]

A permit for cremation must be obtained from the Chief Medical Examiner, the county medical examiner or the county coroner of the county where the death occurred. If the cremation contract sets no time, a crematory operator who does not perform the cremation within 21 days of receiving the remains, or does not deliver the cremated remains within 35 days, commits a misdemeanor. A shorter time agreed in the contract controls, and a delay caused by circumstances wholly outside the operator’s control is a defense. Ask what dates your contract promises. [3]

A cemetery that advertises or sells perpetual care must keep a permanent endowment care fund. For each burial right or lot it must deposit $10 or 10% of the gross sales proceeds, whichever is greater, and at least 5% for an entombment or columbarium right. The trustee’s annual report must be kept at the cemetery office for owners of interment rights to inspect. Ask to see the latest report. [4][5]

That care-fund law does not apply to private or family cemeteries that do not sell lots or spaces to the public, or to cemeteries owned and operated entirely and exclusively by churches, religious societies, established fraternal organizations, municipalities or other subdivisions of the state, or to a national cemetery. The exemption alone does not tell you what care such a cemetery promises. Ask for its written care arrangements. [6]

When a cemetery company sells items such as burial vaults, crypts, memorials, marker bases or opening and closing services for delivery more than 120 days after the first payment, it must deposit 40% of the receipts in a trust fund. Graves are not included in that requirement. Markers, monuments, crypts, urns and burial vaults are also excluded from the funeral-contract trust and refund rules described below. Ask which items will be delivered now, which are held for later, and what happens to your money if you change your mind. [7][8][9]

For preneed funeral contracts entered into after June 7, 1983, the seller may keep up to 10% of the total original contract amount for selling expenses and overhead, and that amount is exempt from the law’s trust and refunding provisions. Unless the law specifically exempts them, the remaining funds must be deposited in West Virginia within 30 days of receipt, with an insured bank, savings institution or credit union or under a trust instrument with a bank or trust company. If the contract is funded by an insurance policy or annuity, the premiums go to a licensed insurer instead. Ask how much the seller will keep and where the rest will be held. [10]

Before the death of the person the contract covers, the buyer, or someone legally authorized to act for the buyer, may cancel by written notice to the seller. The seller must notify the trustee within 10 days, and the trustee must then pay, within 30 days, all funds placed in the trust account and paid on the contract. Because the seller’s retained share is exempt from refunding, a refund may be less than everything you paid. The seller may cancel only if the buyer is in default; after more than 180 days in default and 10 days’ written notice, the funds in the trust account are refunded. Ask for a written estimate of what a cancellation would return, and ask separately how an insurance-funded plan can be cancelled. [11][10]

Every preneed funeral contract must be in writing, on a form approved in advance by the Consumer Protection Division of the Attorney General’s office. Since January 1, 1997, the buyer pays a $20 recording fee to the seller, who must send it and a copy of the contract to the division within 10 days; the division then tells the buyer by mail that the contract has been recorded. Part of each fee goes to a Preneed Guarantee Fund, which can repay the amount actually paid to a buyer who cannot receive the contract benefits or a refund, to the extent the fund has money. Ask when you should expect the recording notice. [12][9]

A contract may not stop a buyer from making it irrevocable under state law, and irrevocable contracts may still be transferred. With the written acceptance of the new provider, a buyer may transfer the seller’s obligations to another provider inside or outside the state, and the funds on deposit move with the contract. Ask what choosing irrevocability would mean for any refund before you sign. [12]