Chapter 157

157.115(1)(b) (b)

157.115(1)(b)1. 1. When a cemetery authority fails to care for the cemetery for a period of one or more years, the municipality in which the cemetery is located may take control of the cemetery, manage and care for the cemetery and collect and manage all trust funds connected with the cemetery other than trust funds received by a will.

157.115(1)(b)2. 2. When a cemetery authority abandons or fails to manage or care for the cemetery for a period of 5 or more years, the municipality in which the cemetery is located shall take control of the cemetery, manage and care for the cemetery and collect and manage all trust funds connected with the cemetery other than trust funds received by a will.

157.115(1)(c) (c) Whenever any cemetery in a town is falling into disuse, or is abandoned or neglected, and by reason of the removal or death of the persons interested in its upkeep there exists no association or group with authority to transfer ownership and operation of the cemetery to the town, the town board, at the expense of the town, shall take charge of the cemetery and manage and care for it, and if the town board fails to take charge of the cemetery, the circuit judge may upon petition by 6 or more persons interested in the upkeep of the cemetery order its transfer to the town, including the transfer of all assets. Cemeteries so transferred shall be managed as provided for other town cemeteries.

157.115(2) (2) Abandonment of cemetery lots.

157.115(2)(a) (a) In this subsection:

157.115(2)(a)1. 1. “Abandoned lot” means any grave or mausoleum space of a cemetery lot that is not owned by the cemetery authority of the cemetery in which the cemetery lot is located if that grave or that mausoleum space has not been used for the burial of human remains and if, according to the records of the cemetery authority, all of the following apply during the 50-year period immediately preceding the date on which the notice requirement under par. (c) is satisfied:

157.115(2)(a)1.a. a. No owner has transferred any ownership interest in the cemetery lot to any other person.

157.115(2)(a)1.b. b. No owner has purchased or sold another cemetery lot or a mausoleum space in the cemetery.

157.115(2)(a)1.c. c. No other grave in that cemetery lot or adjoining cemetery lot or adjoining mausoleum space that is owned or partially owned by an owner has been used for the burial of human remains.

157.115(2)(a)1.d. d. No grave marker, monument or other memorial has been installed on the cemetery lot.

157.115(2)(a)1.e. e. No grave marker, monument or other memorial has been installed on any other cemetery lot, in the same cemetery, that is owned or partially owned by an owner.

157.115(2)(a)1.f. f. No nameplate, monument or other memorial has been installed to identify the human remains that are buried within a mausoleum space, in the same cemetery, that is owned or partially owned by an owner.

157.115(2)(a)1.g. g. The cemetery authority has not been contacted by an owner or assignee or received any other notice or evidence to suggest that an owner or assignee intends to use the cemetery lot for a future burial of human remains.

157.115(2)(a)2. 2. “Assignee” means a person who has been assigned in the deceased owner’s will or in any other legally binding written agreement, or who is entitled to receive under ch. 852, an ownership interest in the abandoned cemetery lot.

157.115(2)(a)3. 3. “Owner” has the meaning given in s. 157.10 (1).

157.115(2)(b) (b) No cemetery authority may resell an abandoned lot unless the cemetery authority complies with the requirements in this subsection.

157.115(2)(c) (c) The cemetery authority shall mail to each owner, at each owner’s last-known address, a notice of the cemetery authority’s intent to resell the abandoned lot as provided in this subsection. If an owner is buried in the cemetery in which the abandoned lot is located or if the cemetery authority has any other evidence that reasonably supports a determination by the cemetery authority that the owner is deceased, no notice is required under this paragraph.

157.115(2)(d) (d) If no notice is required under par. (c) or if, within 60 days after notice is mailed under par. (c), no owner or assignee contacts the cemetery authority to express an intent to use the abandoned lot for a future burial of human remains, the cemetery authority shall publish in a newspaper of general circulation in the county in which the abandoned lot is located, a class 3 notice under ch. 985 that includes all of the following:

157.115(2)(d)1. 1. The location of the abandoned lot.

157.115(2)(d)2. 2. The name and last-known address of each owner.

157.115(2)(d)3. 3. A statement that, unless an owner or assignee contacts the cemetery authority within the period specified in par. (e), the cemetery authority intends to resell the abandoned lot as provided in this subsection.

157.115(2)(e) (e) If within 60 days after notice is published under par. (d) no owner or assignee contacts the cemetery authority to express an intent to use the abandoned lot for a future burial of human remains, the cemetery authority shall bring an action in the circuit court of the county in which the abandoned lot is located for a judgment that the cemetery lot is an abandoned lot and an order transferring ownership of the abandoned lot to the cemetery authority.

157.115(2)(f) (f) If within one year after the circuit court enters a judgment and order under par. (e) no owner or assignee contacts the cemetery authority to express an intent to use the abandoned lot for a future burial of human remains, the cemetery authority may resell the abandoned lot, except as provided in par. (g). The payment of principal shall be deposited into the care fund. Before depositing the payment of principal into the care fund, the cemetery authority may retain an amount necessary to cover the cemetery authority’s administrative and other expenses related to the sale, but the amount retained may not exceed 50 percent of the proceeds.

157.115(2)(g) (g) If at any time before an abandoned lot is resold under par. (f) an owner or assignee contacts the cemetery authority to express an intent to use the abandoned lot for a future burial of human remains, the authority may not resell the abandoned lot, and ownership of the abandoned lot shall be transferred to the owner or assignee. The cemetery authority shall pay all costs of transferring ownership under this paragraph.

157.115(2)(h) (h) Nothing in this subsection prohibits a cemetery authority from seeking the authority to resell more than one abandoned lot by publishing a single class 3 notice under par. (d) or bringing a single action under par. (e) that applies to all of the abandoned lots for which such authority is sought.

157.115 History History: 1989 a. 307 ss. 18m, 20, 28, 45; 2013 a. 151; 2015 a. 237.

157.115 Annotation Some formality beyond the internment of bodies is and has long been required to establish a cemetery. DeWitt v. Ferries, 2018 WI 117, 385 Wis. 2d 1, 921 N.W.2d 188, 16-1765.

157.12 157.12 Mausoleums.

157.12(2) (2) Construction of mausoleums.

157.12(2)(a) (a) Any person who constructs a mausoleum or converts a building or other structure to a mausoleum shall comply with the rules of the cemetery board and shall receive the cemetery board’s approval in writing of the plans and specifications prior to construction or conversion. No person may modify plans or specifications that have been approved under this paragraph without approval in writing from the cemetery board, unless such modifications are cosmetic in nature. The cemetery board shall promulgate rules providing reasonable requirements governing the location, material, and construction of a mausoleum, in accordance with the requirements in par. (d). Any municipality may enact ordinances governing mausoleums at least as stringent as this section.

157.12(2)(b) (b) The cemetery board shall supervise construction of any public mausoleum and conversion of any building to a public mausoleum. Within 30 days after receiving written notice from the cemetery authority that the construction or conversion has been completed, the cemetery board shall inspect the public mausoleum and provide the cemetery authority with a written certification as to whether the construction or conversion complies with approved plans. If the cemetery board determines that, except for certain minor defects, the construction or conversion complies with the approved plans, the cemetery board may provide the cemetery authority with a written temporary certification of compliance that is contingent on the correction of those minor defects. A temporary certification is valid for a period designated by the cemetery board, not to exceed 6 months. No person may sell a mausoleum space, except an undeveloped space that is sold in accordance with s. 440.92, or bury human remains in a public mausoleum unless a care fund has been established for the mausoleum under sub. (3) and the cemetery board has provided the cemetery authority with a certification or a temporary certification under this paragraph. If a cemetery authority that has been provided with a temporary certification notifies the cemetery board in writing before the date on which the temporary certification expires that the defects in the construction or conversion of the public mausoleum have been corrected, the cemetery board shall, within 30 days after receiving the notice, reinspect the public mausoleum and provide the cemetery authority with a written certification as to whether the construction or conversion complies with the approved plans. If a cemetery authority that has been provided with a temporary certification does not receive a written certification from the cemetery board before the date on which the temporary certification expires that the construction or conversion complies with the approved plans, then, beginning on the date on which the certification expires, no person may sell a mausoleum space, except an undeveloped space that is sold in accordance with s. 440.92, or bury human remains in the public mausoleum until the defects are corrected and the cemetery board subsequently inspects the public mausoleum and provides the cemetery authority with a certification that the construction or conversion complies with the approved plans. The cemetery board may charge a reasonable fee to the cemetery authority for each inspection and certification provided under this paragraph if the inspection and certification are provided within the applicable 30-day period prescribed under this paragraph.

157.12(2)(bm) (bm) If a municipality in which a mausoleum is located requires the owner or operator of the mausoleum to obtain from the municipality a permit for the use or occupancy of the mausoleum, the municipality shall issue that permit to the owner or operator if the owner or operator has been provided with a certification or temporary certification for the mausoleum under par. (b). The permit shall be valid for a period equal to or longer than the period for which the certification or temporary certification under par. (b) is valid.

157.12(2)(c) (c)

157.12(2)(c)1. 1. Except as provided in subd. 2., no person may establish or use a public mausoleum unless the mausoleum is located inside a cemetery of 20 acres or more that has been in existence for 10 years or more.

157.12(2)(c)2. 2. A person may establish or use a public mausoleum in a cemetery consisting of less than 20 acres in a municipality that has enacted an ordinance under s. 157.129 (2) if the cemetery meets the minimum acreage requirement specified in that ordinance.

157.12(2)(d) (d) A mausoleum shall be constructed to last as long as possible, taking into consideration the technology and economics applicable to mausoleum construction at the time of construction.

157.12(3) (3) Care fund for mausoleums.

157.12(3)(a) (a) Any person who operates a public mausoleum shall establish a care fund as follows:

157.12(3)(a)1. 1. If the mausoleum has been in existence since June 15, 1933, and is covered by the care fund of the cemetery in which the mausoleum is located, the cemetery shall deposit at least 15 percent of each payment of principal received from the sale of a mausoleum space into the care fund, until the care fund equals 10 percent of the cost of constructing the mausoleum.

157.12(3)(a)2. 2. Except as provided in subd. 1., the operator of the mausoleum shall deposit at least 25 percent of each payment of principal received from the sale of a mausoleum space into the care fund, until the care fund equals 25 percent of the cost of constructing the mausoleum.

157.12(3)(a)3. 3. The operator shall make deposits required under subds. 1. and 2. within 30 days after the last day of the month in which the payment is received. The municipality in which the mausoleum is located may, by ordinance, require a larger fund, but only if the cemetery board notifies the municipality in writing that the cemetery board approves of the requirement. The cemetery board may promulgate rules establishing uniform standards for approvals under this subdivision.

157.12(3)(b) (b) The cemetery’s treasurer is the custodian of the fund. The treasurer shall file with the cemetery, at the cemetery’s expense, a bond with sureties approved by the cemetery board to indemnify the cemetery against loss if the treasurer fails to maintain the fund. No indemnity is required if the terms of sale of a mausoleum space require the purchaser to pay directly to a trust company in the state, designated by the cemetery as custodian of the fund. The fund shall be invested as provided in s. 157.19. Income from investment may be used only to maintain the mausoleum, except that if the amount of income exceeds the amount necessary to properly maintain the mausoleum the excess amount may be used to maintain any portion of the cemetery.

157.12 History History: 1971 c. 41 s. 12; 1971 c. 164; 1977 c. 449; 1979 c. 221; 1981 c. 20; 1989 a. 307; 1991 a. 269; 1995 a. 27 ss. 4402, 9116 (5); 1999 a. 150 s. 672; 2011 a. 32, 146; 2015 a. 237.

157.123 157.123 Columbaria maintained by religious associations.

157.123(1) (1) Definition. In this section, “columbarium” has the meaning given in s. 440.70 (4).

157.123(2) (2) Exemption. A columbarium that is established and used by a religious association is not subject to any requirement under this subchapter applicable to a mausoleum or cemetery if all of the following requirements are satisfied:

157.123(2)(a) (a) The columbarium shall be located on property owned by the religious association and on which is located the religious association’s church building or other place of worship.

157.123(2)(b) (b) The religious association shall ensure that the columbarium is perpetually kept and maintained in a manner consistent with the intent of this chapter.

157.123(2)(c) (c) If the religious association ceases to use or occupy the church building or other place of worship where the columbarium is located, the religious association shall relocate all of the urns in the columbarium containing cremated remains.

157.123(2)(d) (d) The religious association shall deposit, within 30 days after receipt of the payment, at least 25 percent of each payment of principal received from the sale of a niche in the columbarium into a care fund, until the care fund equals 25 percent of the cost of constructing the columbarium. The care fund and any income from investment of the care fund may be used only to maintain the columbarium.

157.123(2)(e) (e)

157.123(2)(e)1. 1. Annually, the religious association shall file a certification with the department on a form prescribed and furnished by the department that includes all of the following:

157.123(2)(e)1.a. a. The name and address of the religious association and the address where the columbarium is located.

157.123(2)(e)1.b. b. A notarized statement of an authorized agent of the religious association that the religious association is in full compliance with par. (d).

157.123(2)(e)2. 2. A certification under this paragraph is effective for a 12-month period, beginning on the date the certification is filed with the department.

157.123(2)(e)3. 3. During the effective period specified under subd. 2., the department may not audit the care fund or any records or accounts of the religious association relating to the care fund for the columbarium to which the certification applies.

157.123(2)(e)4. 4. The religious association is liable for the damages of any person resulting from the failure of the religious association to fully comply with par. (d) during the effective period specified under subd. 2.

157.123(3) (3) Application.

157.123(3)(a) (a) Except as provided under par. (b), this section applies to all columbaria, including columbaria for which initial construction was commenced prior to November 13, 2015.

157.123(3)(b) (b) This section does not apply to a columbarium for which initial construction was commenced during the period beginning on November 13, 2015, and ending on November 30, 2016.

157.123 History History: 2015 a. 95.

157.125 157.125 Trustees for the care of cemeteries or cemetery lots.

157.125(1) (1) If a trust is created for the care of a burial place or grave but no trustee is named in the will to administer the trust, the circuit court having jurisdiction may name the county treasurer of the county in which the burial place or grave is situated as trustee, except as provided in sub. (2). If not contrary to the terms of the trust, the county treasurer may contract with the person in charge of the burial place or grave for its care and pay to that person the income from the trust property or the part of the income that may be necessary for that purpose. If there is no person in charge of the burial place or grave, then the income shall be paid to the city, village, or town, in which the burial place or grave is situated, and for the purposes of this subsection, the governing body of that municipality has the duty of caring for the burial place or grave to the extent of money received for that purpose. The county treasurer shall annually render an account to the circuit court as provided in ch. 701 and the person or municipality receiving money for such care shall also render an annual accounting to the circuit court and the cemetery board as provided in s. 157.62 (2) (b) 3. to 7.

157.125(2) (2) If the burial place or grave is located in a cemetery owned and operated by, or affiliated with, a religious association, the court shall name the religious association as the trustee unless the religious association petitions the court to name the county treasurer as the trustee.

157.125 History History: 1971 c. 41 s. 11; 1979 c. 175 s. 50; 1989 a. 307; 2015 a. 237.

157.128 157.128 Minimum acreage requirement for cemetery established on or after November 1, 1991.

157.128(1) (1) Except as provided in subs. (2) and (3), no cemetery may be dedicated on or after November 1, 1991, unless the cemetery consists of at least 20 contiguous acres.

157.128(2) (2) A cemetery consisting of less than 20 contiguous acres may be dedicated on or after November 1, 1991, if all of the following apply:

157.128(2)(a) (a) The cemetery is owned by a religious association.

157.128(2)(b) (b) The religious association is responsible for all liabilities of the cemetery.

157.128(2)(c) (c) The total acreage of all other cemeteries owned by the religious association exceeds 20 acres.

157.128(3) (3) 

157.128(3)(a) (a) A cemetery consisting of less than 20 contiguous acres may be dedicated in a municipality that has enacted an ordinance under s. 157.129 if the cemetery meets the minimum acreage requirement specified in that ordinance.

157.128(3)(b) (b) A cemetery consisting of less than 20 contiguous acres may be dedicated by a cemetery authority that is not required to be licensed under s. 440.91 (1) and that is not organized or conducted for pecuniary profit.

157.128 History History: 1989 a. 307; 1991 a. 269; 1999 a. 150 s. 672; 2005 a. 25.

157.129 157.129 Minimum acreage of cemeteries; local ordinance. A city, village or town may enact and enforce an ordinance that does any of the following:

157.129(1) (1) Allows a cemetery consisting of less than the minimum acreage specified in s. 157.128 (1) to be dedicated, as defined in s. 157.061 (4), in that city, village or town.

157.129(2) (2) Allows a person to establish and use a public mausoleum in a cemetery consisting of less than the minimum acreage specified in s. 157.12 (2) (c).

157.129 History History: 1991 a. 269; 1999 a. 150 s. 157; Stats. s. 157.129.

157.19 157.19 Deposit and investment of care funds and preneed trust funds.

157.19(1) (1) In this section, “financial institution” has the meaning given in s. 705.01 (3), but, except with respect to the deposit of preneed trust funds, also includes a broker-dealer registered under s. 551.401 (1) or exempt from registration under s. 551.401 (2).

157.19(2) (2) 

157.19(2)(a) (a) Except as provided in sub. (5) and the rules promulgated under sub. (4), the cemetery authority may deposit care funds under s. 157.11 (9g), and shall deposit care funds under s. 157.12 (3) and preneed trust funds under s. 440.92, with a financial institution located in this state. The financial institution shall be the trustee of the care funds and preneed trust funds. A bank need not comply with s. 221.0316 (1) or (2) or ch. 223 to accept or disburse deposits under this section. The trustee shall invest the care funds and preneed trust funds as provided under s. 881.01, except as provided in sub. (5) and the rules promulgated under sub. (4).

157.19(2)(b) (b) The cemetery authority may not change the trustee of a care fund under s. 157.11 (9g) that is deposited under this section or of a care fund under s. 157.12 (3), and the financial institution may not release any portion of the principal amount of the care fund, without the cemetery board’s written approval.

157.19(2)(c) (c) Upon request of the financial institution, the preneed seller, as defined in s. 440.90 (8), shall furnish the financial institution with a copy of the preneed sales contract. Except as provided in s. 440.92 (2) (c), (f) and (j) and (5), preneed trust funds, and any interest or dividends that have accumulated on the preneed trust funds, may not be withdrawn until all obligations under the preneed sales contract have been fulfilled. The financial institution is not responsible for the fulfillment of any part of the preneed sales contract, except that the financial institution shall release the preneed trust funds, and any interest or dividends that have accumulated on the preneed trust funds, as provided by the terms of the preneed sales contract. The trustee of a preneed trust fund may not be changed without the cemetery board’s written approval. If the trustee or account number of a preneed trust fund is changed, the cemetery authority shall notify the cemetery board in writing within 30 days after the change.

157.19(2)(d) (d) The cemetery board shall promulgate rules establishing reasonable requirements and standards for the approval of changes under pars. (b) and (c). For approval of changes under par. (b), the rules shall require the cemetery authority to submit evidence that the rights and interests of the beneficiary of the care fund will be adequately protected if the change is approved. For approval of changes under par. (c), the rules shall require the trustee to submit evidence that the rights and interests of the purchaser under the preneed sales contract will be adequately protected if the change is approved.

157.19(4) (4) The cemetery board may promulgate rules allowing funds invested under this section to be deposited with a financial institution located outside this state.

157.19(5) (5)