North Carolina
Laws and Statutes Regarding Cemeteries
Article 12.
Abandoned and Neglected Cemeteries.
Part 1. General.
§ 65-85. Definitions.
As used in this Article, the following terms mean:
(1) Abandoned. – Ceased from maintenance or use by the person with legal right to the real property with the intent of not again maintaining the real property in the foreseeable future.
(2) Cemetery. – A tract of land used for burial of multiple graves.
(3) Department. – The Department of Cultural Resources.
(4) Grave. – A place of burial for a single decedent.
(5) Neglected. – Left unattended or uncared for through carelessness or intention and lacking a caretaker.
(6) Public cemetery. – A cemetery for which there is no qualification to purchase, own, or come into possession of a grave in that cemetery.
§§ 65-86 through 65-90: Reserved for future codification purposes.
Part 2. Trust Funds for Care of Cemeteries.
§ 65-91. Money deposited with the clerk of superior court.
For the maintenance and preservation of abandoned or neglected graves or abandoned or neglected cemeteries, any person, firm, or corporation may, by will or otherwise, place in the hands of the clerk of the superior court of any county in the State where such grave or lot is located any sum of money not less than five thousand dollars ($5,000), the income from which is to be used for keeping in good condition the abandoned or neglected grave or the abandoned or neglected cemetery with specific instructions as to the use of the fund.
§ 65-92. Separate record of accounts to be kept.
It shall be the duty of the clerk of the superior court to keep a separate record for keeping account of the money deposited as provided in G.S. 65-91, to keep a perpetual account of the same therein, and to record therein the specific instructions about the use of the income on such money. The clerk shall see that the income is spent according to such specific instructions and shall place a copy of the accounting in the estate file.
§ 65-93. Funds to be kept perpetually.
All money placed in the office of the superior court clerk in accordance with this Part shall be held perpetually, or until such time as the balance of the trust corpus falls below one hundred dollars ($100.00), at which time the trust shall terminate, and the clerk shall disburse the remaining balance as provided in G.S. 36A-147(c). Except as otherwise provided herein, no one shall have authority to withdraw or change the direction of the income on same.
§ 65-94. Investment of funds.
Money placed in the office of the superior court clerk in accordance with this Part shall be invested in the same manner as is provided by law for the investment of other trust funds by the clerk of the superior court.
§ 65-95. Clerk's bond; substitution of bank or trust company as trustee.
The official bond of the clerk of the superior court shall be liable for all such sums as shall be paid over to the clerk in accordance with the provisions of this Part. In lieu of the provisions of this section, the clerk may appoint any bank or trust company authorized to do business in this State as trustee for the funds authorized to be paid into his office by virtue of this Part; provided, that no bank or trust company shall be appointed as such trustee unless such bank or trust company is authorized and licensed to act as fiduciary under the laws of this State.
Before any clerk shall turn over such funds to the trustee so appointed, the clerk shall require that the trustee so named qualify before the clerk as such trustee in the same way and manner and to the same extent as guardians are by law required to so qualify. After such trustee has qualified as herein provided, all such funds coming into the clerk's hands may be invested by the trustee only in the securities set out in G.S. 7A-112 and the income therefrom invested for the purposes and in the manner heretofore set out in this Part. All trustees appointed under the provisions of this Part shall render and file in the office of the clerk of the superior court all reports that are now required by law of guardians.
§ 65-96. Funds exempt from taxation.
All money referred to in the preceding sections of this Part shall be exempt from all State, county, township, town, and city taxes.
§§ 65-97 through 65-100: Reserved for future codification purposes.
Part 3. Access to and Maintenance of Abandoned or Neglected Cemeteries.
§ 65-101. Entering public or private property to maintain or visit with consent.
Any of the following persons, with the consent of the public or private landowner, may enter the property of another to discover, restore, maintain, or visit a grave or abandoned public cemetery:
(1) A descendant of the person whose remains are reasonably believed to be interred in the grave or abandoned public cemetery.
(2) A descendant's designee.
(3) Any other person who has a special personal interest in the grave or abandoned public cemetery.
§ 65-102. Entering public or private property to maintain or visit without consent.
(a) If the consent of the landowner cannot be obtained, any person listed in G.S. 65-101(1), (2), or (3) may commence a special proceeding by petitioning the clerk of superior court of the county in which the petitioner has reasonable grounds to believe the grave or abandoned public cemetery is located for an order allowing the petitioner to enter the property to discover, restore, maintain, or visit the grave or abandoned public cemetery. The petition shall be verified. The special proceeding shall be in accordance with the provisions of Articles 27A and 33 of Chapter 1 of the General Statutes. The clerk shall issue an order allowing the petitioner to enter the property if the clerk finds all of the following:
(1) There are reasonable grounds to believe that the grave or abandoned public cemetery is located on the property or it is reasonably necessary to enter or cross the landowner's property to reach the grave or abandoned public cemetery.
(2) The petitioner, or the petitioner's designee, is a descendant of the deceased, or the petitioner has a legitimate historical, genealogical, or governmental interest in the grave or abandoned public cemetery.
(3) The entry on the property would not unreasonably interfere with the enjoyment of the property by the landowner.
(b) The clerk's order may state one or more of the following:
(1) Specify the dates and the daylight hours that the petitioner may enter and remain on the property.
(2) Grant the petitioner the right to enter the landowner's property periodically, as specified in the order, after the time needed for initial restoration of the grave or abandoned public cemetery.
(3) Specify a reasonable route from which the petitioner may not deviate in all entries and exits from the property.
§§ 65-103 through 65-105: Reserved for future codification purposes.
Part 4. Removal of Graves.
§ 65-106. Removal of graves; who may disinter, move, and reinter; notice; certificate filed; reinterment expenses; due care required.
(a) The State of North Carolina and any of its agencies, public institutions, or political subdivisions, the United States of America or any agency thereof, any church, electric power or lighting company, or any person, firm, or corporation may effect the disinterment, removal, and reinterment of graves as follows:
(1) By the State of North Carolina or any of its agencies, public institutions, or political subdivisions, the United States of America or any agency thereof, when it shall determine and certify to the board of county commissioners in the county from which the bodies are to be disinterred that such removal is reasonably necessary to perform its governmental functions and the duties delegated to it by law.
(2) By any church authority in order to erect a new church, parish house, parsonage, or any other facility owned and operated exclusively by such church; in order to expand or enlarge an existing church facility; or better to care for and maintain graves not located in a regular cemetery for which such church has assumed responsibility of care and custody.
(3) By an electric power or lighting company when it owns land on which graves are located, and the land is to be used as a reservoir.
(4) By any person, firm, or corporation who owns land on which an abandoned cemetery is located after first securing the consent of the governing body of the municipality or county in which the abandoned cemetery is located.
(b) The party effecting the disinterment, removal, and reinterment of a grave containing a decedent's remains under the provisions of this Part shall, before disinterment, give 30 days' written notice of such intention to the next of kin of the decedent, if known or subject to being ascertained by reasonable search and inquiry, and shall cause notice of such disinterment, removal, and reinterment to be published at least once per week for four successive weeks in a newspaper of general circulation in the county where such grave is located, and the first publication shall be not less than 30 days before disinterment. Any remains disinterred and removed hereunder shall be reinterred in a suitable cemetery.
(c) The party removing or causing the removal of all such graves shall, within 30 days after completion of the removal and reinterment, file with the register of deeds of the county from which the graves were removed and with the register of deeds of the county in which reinterment is made, a written certificate of the removal facts. Such certificate shall contain the full name, if known or reasonably ascertainable, of each decedent whose grave is moved, a precise description of the site from which such grave was removed, a precise description of the site and specific location where the decedent's remains have been reinterred, the full and correct name of the party effecting the removal, and a brief description of the statutory basis or bases upon which such removal or reinterment was effected. If the full name of any decedent cannot reasonably be ascertained, the removing party shall set forth all additional reasonably ascertainable facts about the decedent including birth date, death date, and family name. The fee for recording instruments in general, as provided in G.S. 161-10(a)(1), for registering a certificate of removal facts shall be paid to the register of deeds of each county in which such certificate is filed for registration.
(d) All expenses of disinterment, removal, and acquisition of the new burial site and reinterment shall be borne by the party effecting such disinterment, removal, and reinterment, including the actual reasonable expense of one of the next of kin incurred in attending the same, not to exceed the sum of two hundred dollars ($200.00).
(e) The Office of Vital Records of North Carolina shall promulgate regulations affecting the registration and indexing of the written certificate of the removal facts, including the form of that certificate.
(f) The party effecting the disinterment, removal, and reinterment of a decedent's remains under the provisions of this Part shall ensure that the site in which reinterment is accomplished shall be of such suitable dimensions to accommodate the remains of that decedent only and that such site shall be reasonably accessible to all relatives of that decedent, provided that the remains may be reinterred in a common grave where written consent is obtained from the next of kin. If under the authority of this Part, disinterment, removal, and reinterment are effected by the State of North Carolina or any of its agencies, public institutions, or political subdivisions, the United States of America or any agency thereof, any electric power or lighting company, then such disinterment, removal, and reinterment shall be performed by a funeral director duly licensed as a funeral director or a funeral service licensee under the provisions of Article 13A of Chapter 90 of the General Statutes.
(g) All disinterment, removal, and reinterment under the provisions of this Part shall be made under the supervision and direction of the county board of commissioners or other appropriate official, including the local health director, appointed by such board for the county where the disinterment, removal, and reinterment take place. If reinterment is effected in a county different from the county of disinterment with the consent of the next of kin of the deceased whose remains are disinterred, then the disinterment and removal shall be made under the supervision and direction of the county board of commissioners or other appropriate official, including the local health director, appointed by such board for the county of the disinterment, and the reinterment shall be made under the supervision and direction of the county board of commissioners or other appropriate official, including the local health director, appointed by such board for the county of reinterment. Due care shall be taken to do said work in a proper and decent manner, and, if necessary, to furnish suitable coffins or boxes for reinterring such remains. Due care shall also be taken to remove, protect, and replace all tombstones or other markers, so as to leave such tombstones or other markers in as good condition as that prior to disinterment. Provided that in cases where the remains are to be moved to a perpetual care cemetery or other cemetery where upright tombstones are not permitted, a suitable replacement marker shall be provided.
(h) Nothing contained in this Part shall be construed to grant or confer the power or authority of eminent domain, or to impair the right of the next of kin of a decedent to remove or cause the removal, at his or their expense, of the remains or grave of such decedent.
§§ 65-107 through 65-110: Reserved for future codification purposes.
Part 5. County Care of Rural Cemeteries.
§ 65-111. County commissioners to provide list of public and abandoned
cemeteries.
Each board of county commissioners shall have the following duties and responsibilities:
(1) To prepare and keep on record in the office of the register of deeds a list of all public cemeteries in the county outside the limits of incorporated municipalities, and not established and maintained for the use of an incorporated municipality, including the names and addresses of the persons in possession and control of those public cemeteries.
(2) To prepare and keep on record in the office of the register of deeds a list of all abandoned public cemeteries.
(3) To furnish to the Department and the Publications Division in the Department of the Secretary of State copies of the lists of such public and bandoned cemeteries, to the end that it may furnish to the boards of county commissioners, for the use of the persons in control of such cemeteries, suitable literature, suggesting methods of taking care of such places.
§ 65-112. Appropriations by county commissioners.
To encourage the persons in possession and control of the public cemeteries referred to in G.S. 65-111 to take proper care of and to beautify such cemeteries, to mark distinctly their boundary lines with evergreen hedges or rows of suitable trees, and otherwise to lay out the grounds in an orderly manner, the board of county commissioners of any county, upon being notified that two-thirds of the expense necessary for so marking and beautifying any cemetery has been raised by the local governing body of the institution which owns the cemetery, and is actually in hand, is hereby authorized to appropriate from the general fund of the county one-third of the expense necessary to pay for such work, the amount appropriated by the board of commissioners in no case to exceed fifty dollars ($50.00) for each cemetery.
§ 65-113. County commissioners to have control of abandoned public cemeteries; trustees.
The county commissioners of the various counties are authorized to oversee all abandoned public cemeteries in their respective counties, to see that the boundaries and lines are clearly laid out, defined, and marked, and to take proper steps to preserve them from encroachment, and they are hereby authorized to appropriate from the general fund of the county whatever sums may be necessary from time to time for the above purposes.
The boards of county commissioners of the various counties may appoint a board of trustees not to exceed five in number and to serve at the will of the board, and may impose upon such trustees the duties required of the board of commissioners by this Article; and such trustees may accept gifts and donations for the purpose of upkeep and beautification of such cemeteries.
§§ 65-114 through 65-125: Reserved for future codification purposes.
SECTION 2. Article 1 of Chapter 65 of the General statutes is repealed.
SECTION 3. Article 4 of Chapter 65 of the General statutes is repealed.
SECTION 4. Article 5 of Chapter 65 of the General statutes is repealed.
SECTION 5. Article 8 of Chapter 65 of the General statutes is repealed.
SECTION 6. Article 10 of Chapter 65 of the General statutes is repealed.
SECTION 7. This act becomes effective July 1, 2007, and applies to all trusts created on or after that date.
Article 22
Trespasses to Land and Fixtures
§ 14-148. Defacing or desecrating grave sites.
(a) It is unlawful to willfully:
(1) Throw, place or put any refuse, garbage or trash in or on any cemetery.
(2) Take away, disturb, vandalize, destroy or change the location of any stone, brick, iron or other material or fence enclosing a cemetery without authorization of law or consent of the surviving spouse or next of kin of the deceased.
(3) Take away, disturb, vandalize, destroy, or tamper with any
shrubbery, flowers, plants or other articles planted or placed within any cemetery to designate where human remains are interred or to preserve and perpetuate the memory and name of any person, without authorization of law or the consent of the surviving spouse or next of kin.
(b) The provisions of this section shall not apply to:
(1) Ordinary maintenance and care of a cemetery by the owner, caretaker, or other person acting to facilitate cemetery operations by keeping the cemetery free from accumulated debris or other signs of neglect.
(2) Conduct that is punishable under G.S. 14-149.
(3) A professional archaeologist as defined in G.S. 70-28(4) acting pursuant to the provisions of Article 3 of Chapter 70 of the General Statutes.
(c) Violation of this section is a Class I felony if the damage caused by the violation is one thousand dollars ($1,000) or more. Any other violation of this section is a Class 1 misdemeanor. In passing sentence, the court shall consider the appropriateness of restitution or reparation as a condition of probation under G.S. 15A-1343(b)(9) as an alternative to actual imposition of a fine, jail term, or both.
§ 14-149. Desecrating, plowing over or covering up graves; desecrating human remains.
(a) It is a Class I felony, without authorization of law or the consent of the surviving spouse or next of kin of the deceased, to knowingly and willfully:
(1) Open, disturb, destroy, remove, vandalize or desecrate any casket or other repository of any human remains, by any means including plowing under, tearing up, covering over or otherwise obliterating or removing any grave or any portion thereof.
(2) Take away, disturb, vandalize, destroy, tamper with, or deface any tombstone, headstone, monument, grave marker, grave ornamentation, or grave artifacts erected or placed within any cemetery to designate the place where human remains are interred or to preserve and perpetuate the memory and the name of any person. This subdivision shall not apply to the ordinary maintenance and care of a cemetery.
(a1) It is a Class H felony, without authorization of law or the consent of the surviving spouse or next of kin of the deceased, to knowingly and willfully disturb, destroy, remove, vandalize, or desecrate any human remains that have been interred in a cemetery.
(b) The provisions of this section shall not apply to a professional archaeologist as defined in G.S. 70-28(4) acting pursuant to the provisions of Article 3 of Chapter 70 of the General Statutes.
SECTION 3. This act becomes effective December 1, 2007, and applies to offenses committed on or after that date.
Article 3
Burial and Remains Protection
§ 70-29. Discovery of remains and notification of authorities.
(a) Any person knowing or having reasonable grounds to believe that unmarked human burials or human skeletal remains are being disturbed, destroyed, defaced, mutilated, removed, or exposed, shall notify immediately the medical examiner of the county in which the remains are encountered.
(b) If the unmarked human burials or human skeletal remains are encountered as a result of construction or agricultural activities, disturbance of the remains shall cease immediately and shall not resume without authorization from either the county medical examiner or the Chief Archaeologist, under the provisions of G. S. 70-30(c) or 70-30(d).
(c) (1) If the unmarked human burials or human skeletal remains are encountered by a professional archaeologist, as a result of survey or test excavations, the remains may be excavated and other activities may resume after notification, by telephone or registered letter, is provided by the Chief Archaeologist. The treatment, analysis and disposition of the remains shall come under the provisions of G. S. 70-34 and 70-35.
(2) If a professional archaeologist directing long-term (research designed to continue for one or more field seasons of four or more weeks duration) systematic archaeological research sponsored by any accredited college or university in North Carolina, as a part of his research, recovers Native American skeletal remains, he may be exempted from the provisions of G. S. 70-30, 70-31, 70-32, 70-33, 70-34 and 70-35(c) of this Article so long as he:
a. Notifies the Executive Director within five working days of the initial discovery of Native American skeletal remains;
b. Reports to the Executive Director, at agreed upon intervals, the status of the project;
c. Curates the skeletal remains prior to ultimate disposition; and
d. Conducts no destructive skeletal analysis without the express permission of the Executive Director.
Upon completion of the project fieldwork, the professional archaeologist, in consultation with the skeletal analyst and the Executive Director, shall determine the schedule for the completion of the skeletal analysis. In the event of a disagreement, the time for completion of the skeletal analysis shall not exceed four years. The Executive Director shall have authority concerning the ultimate disposition or the Native American skeletal remains after analysis is completed in accordance with G. S. 70-35(a) and 70-36(b) and (c) .
(d) The Chief Archaeologist shall notify the Chief, Medical Examiner Section, Division of Health Serv ices, Department of Human Resources, of any reported human skeletal remains discovered by a pro fessional archaeologist. (1981, c. 853, s. 2; 1997-443, s. 11A.118(a).
§ 70-30. Jurisdiction over remains.
(a) Subsequent to notification of the discovery of an unmarked human burial or human skeletal remains, the medical examiner of the county in which the remains were encountered shall determine as soon as possible whether the remains are subject to the provisions of G. S. 130-198.
(b) If the county medical examiner determines that the remains are subject to the provisions of G. S. 130-198, he will immediately proceed with his investigation.
(c) If the county medical examiner determines that the remains are not subject to the provisions of G. S. 130-198, he shall so notify the Chief Medical Examiner. The Chief Medical Examiner shall notify the Chief Archaeologist of the discovery of the human skeletal remains and the findings of the county medical examiner. The Chief Archaeologist shall immediately take charge of the remains.
(d) Subsequent to taking charge of the human skeletal remains, the Chief Archaeologist shall have 48 hours to make arrangements with the landowner for the protection or removal of the unmarked human burial or human skeletal remains. The Chief Archaeologist shall have no authority over the remains at the end of the 48-hour period and may not prohibit the resumption of the construction or agricultural activities without the permission of the landowner. (1981, c. 853, s. 2.)
§ 70-31. Archaeological investigation of human skeletal remains.
(a) If an agreement is reached with the landowner for the excavation of the human skeletal remains, the Chief Archaeologist shall either designate a member of his staff or authorize another professional archaeologist to excavate or supervise the excavation.
(b) The professional archaeologist excavating human skeletal remains shall report to the Chief Archaeologist, either in writing or by telephone, his opinion on the cultural and biological characteristics of the remains. This report shall be transmitted as soon as possible after the commencement of excavation, but no later than two full business days after the removal of a burial.
(c) The Chief Archaeologist, in consultation with the professional archaeologist excavating the remains, shall determine where the remains shall be held subsequent to excavation, pending other arrangements according to G. S. 70-32 or 70-33.
(d) The Department of Cultural Resources may obtain administrative inspection warrants pursuant to the provisions of Chapter 15, Article 4A of the General Statutes to enforce the provisions of this Article, provided that prior to the requesting of the administrative warrant, the Department shall contact the affected landowners and request their consent for access to their land for the purpose of gathering such information. If consent is not granted, the Department shall give reasonable notice of the time, place and before whom the administrative warrant will be requested so that the owner or owners may have an opportunity to be heard. (1981, c. 853, s. 2.)
§ 70-32. Consultation with the Native American Community.
(a) If the professional archaeologist determines that the human skeletal remains are Native American, the Chief Archaeologist shall immediately notify the Executive Director of the North Carolina Commission of Indian Affairs. The Executive Director shall notify and consult with the Eastern Band of Cherokee or other appropriate tribal group or community.
(b) Within four weeks of the notification, the Executive Director shall communicate in writing to the Chief Archaeologist, the concerns of the Commission Indian Affairs and an appropriate tribal group or community with regard to the treatment and ultimate disposition of the Native American skeletal remains.
(c) Within 90 days of receipt of the concerns of the Commission of Indian Affairs, the Chief Archaeologist and the Executive Director, with the approval of the principal tribal official of an appropriate tribe, shall prepare a written agreement concerning the treatment and ultimate disposition of the Native American skeletal remains. The written agreement shall include the following:
(1) Designation of a qualified skeletal analyst to work on the skeletal remains;
(2) The type of analysis and the specific period of time to be provided for analysis of the skeletal remains;
(3) The timetable for written progress reports and the final report concerning the skeletal analysis to be provided to the Chief Archaeologist and the Executive Director by the skeletal analyst; and
(4) A plan for the ultimate disposition of the Native American remains subsequent to the completion of adequate skeletal analysis.
If no agreement is reached within 90 days, the Archaeological Advisory Committee shall determine the terms of the agreement. (1981, c. 853, s. 2.)
§ 70-33. Consultation with other individuals.
(a) If the professional archaeologist determines that the human skeletal remains are other than Native American, the Chief Archaeologist shall publish notice that excavation of the remains has occurred, at least once per week for four successive weeks in a newspaper of general circulation in the county where the burials or skeletal remains were situated, in an effort to determine the identity of next of kin or both of the deceased.
(b) If the next of kin are located, within 90 days the Chief Archaeologist in consultation with the next of kin shall prepare a written agreement concerning the treatment and ultimate disposition of the skeletal remains. The written agreement shall include:
(1) Designation of a qualified skeletal analyst to work on the skeletal remains;
(2) The type of analysis and the specific period of time to be provided for analysis of the skeletal remains;
(3) The timetable for written progress reports and the final report concerning the skeletal analysis to be provided to the Chief Archaeologist and the next of kin by the skeletal analyst; and
(4) A plan for the ultimate disposition of the skeletal remains subsequent to the completion of adequate skeletal analysis.
If no agreement is reached, the remains shall be handled accordance to the wishes of the next of kin. (1981, c. 853, s. 2.)
