Q: My 2nd home is in Maryland. My 2 kids live there. My will gives it to them equally but can they live there thru probate?
You need to discuss your situation with a lawyer. There are way too many unanswered questions. Is the home free & clear? Are there other heirs? Will the two heirs share it equally and get along in it? Do you want them to have the house or the proceeds from the house?
The short, and likely wrong, answer is that they can do whatever they want with the house as long as your will makes it clear that they can do what they want with the house and there are no other interests with the right to step ahead of your wishes. Probate is not the issue here, unless the estate has no assets to pay for probate or other creditors. Even then, that usually just means they can't get a lawyer and will need to take money out of their pockets for creditors or taxes. Save lots of trauma by consulting with a lawyer.
A: Yes, they can live there through probate, so long as the PR permits it (or the Will directs that they may). Are the contents of the house also going to the two children in the home, or are other persons receiving some of those contents? Until the house is distributed by deed to your two children, the estate is responsible for paying for property taxes, mortgage, maintenance, upkeep, homeowners insurance, utilities, etc., so are there other assets--like bank accounts with sufficient funds in them, that will be part of the estate and not distributed directy to pay-on-death beneficiaries? The PR may need to collect rent from your children to cover those expenses, and if there are other heirs, other estate assets should not be used to support the property expenses of their living there by diminishing the inheritance of those other heirs (unless that is what you want--again, you'd need to state that in your will). Of course, if your two children cannot get along or do not want to continue living in the house (or even if just one does not), leaving a house to both children may result in litigation over a forced sale or how to manage the jointly ownd property. Finally, if either of your children has debts or judgments against them, the house will be exposed to that child's creditors once it is distributed by deed to them, so you should decide in advance whether that will become a problem. Directing the sale of the house and evenly dividing the net proceeds is a cleaner means to address this issue, but if both children really want the house, and you've discussed this with them, and the other issues raised in this response are not going to be a problem with them or your estate, then there is nothing wrong with your plan. Consult a lawyer to carefully review your estate distribution plan, so that you fully understand what the issues are and the options available to address them, and to insure that what you want to have happen actually can and does happen after you pass.
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