Most real-estate agents ask that your check be made out to the broker of record in their firm or to the firm name. When you do this, add the words “trustee” or “fiduciary agent” after the broker's or firm's name in order to protect your money. Your check can then only be deposited as money held in trust.

Real-estate law in every state provides this earnest money will be returned to you if the offer is not accepted and a contract-to-purchase is not entered into. The return may take some time if the check has been deposited in the broker's account. In practice, though, most real-estate agents clip the earnest money check to the contract and carry it around until a deal is struck. Then they deposit the check.

An earnest-money check is standard procedure when working through a real-estate agent. Do not ever give an earnest-money check directly to a seller. If you are dealing with FSBO sellers who insist upon earnest money before a contract can be executed, write the check to their lawyer or yours, and write “fiduciary agent” after the lawyer's name. The money will then be held in a trust account until the negotiations are complete, the contract signed, and its contingencies met. If the deal falls apart, you will get it back. But if you give earnest money directly to the sellers, you may never see it again, or you may have to go to court for its return.